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23  WEST  MAIN  STREET 

WEBSTER,  NY.  14580 

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CIHM/ICMH 

Microfiche 

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microfiches. 


Canadian  Institute  for  Historical  Microreproductions 


Institut  Canadian  de  microreproductions  historiquf/S 


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THE  FISHERIES  DISPUTE 


A  Suggestion  for  its  Adjustment  by  Abrogating' 

THE  Convention  of  i8i8,  and  Resting  on 

THE  Rights  and  Liberties  Defined 

IN  the  Treaty  of  1783 


A   LETTER 


TO 


' 


THE  HONOURABLE  WILLIAM  M.  EVARTS 

OF  THE  UNITED  STATES  SENATE 


BY 


JOHN   JAY 

LATE  MINISTER  TO  VIENNA 


SECOND  EDITION 


NEW   YORK 

DODD,  MEAD    &   COMPANY 

PUBLISHERS 
1887 


£- 


/Of* 


TftlHTINa  AND  BOOKMNOIHa  COHPUff- 


i_ 


THE  FISHERIES  DISPUTE. 


Dear  Mr.  Evarts  :  The  necessity  of  some  decisive  ac- 
tion by  the  Government  to  arrest  the  vexatious  and  harass- 
ing treatment  of  our  fishermen  by  the  Canadian  auUiorities 
is  recognized  by  the  country,  as  well  for  the  protection  of 
our  own  rights  as  for  the  avoidance  of  a  breach  of  our 
harmonious  relations  with  Great  Britain ;  and  the  passage 
in  the  Senate  by  46  to  i  of  Senator  Edmunds'  bill  to  au- 
thorize the  President  to  protect  and  defend  the  rights  of 
American  fishing  vessels,  American  fishermen,  and  Ameri- 
can trading  and  other  vessels  in  certain  cases  for  other  pur- 
poses, seems  to  show  that  the  Senate  shares  the  judgment 
of  the  country  that  a  continuance  of  the  policy  under  which 
such  annoyances  are  possible  would  be  a  mistake,  and  that 
their  further  toleration  is  forbidden  by  a  decent  regard  to 
the  rights  of  our  fishermen,  and  to  the  peace,  interest,  and 
dignity  of  the  nation. 

Upon  the  question  how  far  the  bill  is  calculated  to  dis- 
turb our  friendly  relations  with  Great  Britain,  the  New 
York  Herald  reports  your  views  as  follows  : 

Mr.  Evarts  argued  in  support  of  the  bill,  which  he  said,  was  not 
in  the  nature  of  a  menace  or  tending  at  all  in  that  direction.  It  was 
the  duty  of  Congress  to  take  the  subject  away  from  local  distui-bance, 
irritation,  and  resentments.  So  far  from  the  bill  tending  to  war  or 
tending  to  umbrage,  it  was  intended  to  have  a  contrary  effect.  It  was 
an  immediate  announcement  to  the  people  that  they  had  only  to  trust 
their  protection,  not  to  personal  resentment,  but  to  the  Government  of 
the  United  States,  and  when  the  opening  summer  should  bring  about 
the  recurrence  of  the  fishing  season  and  of  the  fishing  dangers,  the 


1 


4  THE  FISHERIES  DISPUTE. 

question  would  be  removed  from  that  theatre  of  collision  ;  and,  if  not     ■ 
concluded,  it  would  be  under  the  contract  of  both  governments,  m  a 
deliberate  consideration  of  what  should  be  done  in  order  to  have  sta- 
bility of  intercourse  and  in  order  to  give  stability  to  the  peace  and 
dignity  of  the  two  nations,  the  United  States  and  Great  Bntam. 

I  observe  an  intimation  in  the  papers  that  some  proposi- 
tion has  been  made  by  our  Government  to  which  it  is  await- 
ing a  reply,  and  I  am  sensible  of  the  delicacy  with  which 
one   not  thoroughly  aware  of  the   state  of  a  negotiation, 
should  venture  to  offer  advice.     This  question  of  the  fisher- 
ies however,  is  peculiarly  a  question  for  the  people,  and  the 
recent  reports  in  the  Senate  and  the  House,  the  correspond- 
ence on  the  subject  submitted  by  the  President  on  Decem- 
ber 8.  1886,  and  again  on  February  8,  1887,  with  the  replies 
of  the  Secretary  of  the  Treasury  to  the  House  of  December 
14    1886,  and  of  February  5,  1887,  and  the  letter  of  Secre- 
tary Bayard  to  the  Senate  of  January  26,  1887,  with  the 
bills  proposed  by  Senator  Edmunds  and  Mr.  Belmont,  the 
resolution  of  Mr.  Gorman,  and  the  bill  proposed  by  Secretary 
Manning,  have  brought  the  pending  questions  so  fully»-be- 
fore  the  country,  with  the  facts  and  correspondence  to  so 
late  a  day,  that  a  suggestion  offered  for  consideration  and 
based  upon  historic  data  and  recent  facts,  will  hardly  I  think 
be  regarded  as  untimely  or  improper. 

RETALIATION   AS   A    REMEDY,  TEMPORARY    AND    INCOM- 
PLETE. 

Tha  difficulty  which  we  propose  to  reach  by  retaliation 
seems  to  arise  in  great.part  from  a  seemingly  irreconcilable 
difference  of  opinion  between  the  government  of  Great 
Britain  and  that  of  the  United  States,  touching  the  extent 
of  the  rights  of  cur  fishergien  under  the  Convention  of  1818. 
And  if  that  Convention  is  really  the  iource  of  the  trouble 
which  we  have  had  with  intervals  during  seventy  years,  is 
retaliation  in  truth  the  most  complet-  and  proper  remedy  ? 
or  may  not  a  threat  have  upon  the  English  people  the  effect 


THE  FISHERIES  DISPUTE. 


5 


it  would  have  upon  ourselves,  disposing  us  to  fight  rather 
than  to  argue  ?  or  if  we  are  forced  to  retaliation  as  a  last 
resort,  should  not  its  suggestion  be  accompanied  by  some 
proposition  looking  to  a  fundamental  and  permanent  read- 
justment of  our  rights? 

When  Mr.  Bayard,  under  the  date  of  November  6,  1886, 
referring  to  the  seizure  of  the  Marion  Grimes,  held  that  the 
Dominion  Government  was  seeki*"  by  its  action  in  the 
matter  to  "  invade  and  destroy  the  commercial  rights  and 
privileges  secured  to  the  citizens  of  the  United  States  under 
and  by  virtue  of  treaty  stipulations  with  Great  Britain," 
the  Governor-General  of  Canada,  the  Marquis  of  Lans- 
downe  held  that  that  statement  was  "  not  warranted  by  the 
facts  of  the  case,"  and  that  the  two  vessels  that  had  been 
seized  were  "  fishing  vessels  and  not  traders,  and  therefore 
liable,  subject  to  the  guiding  of  the  courts,  to  any  penal- 
ties imposed  by  law  for  the  enforcement  of  the  Convention 
ofiSiS,  on  parties  violating  the  terms  of  that  Conven- 
tion." 

Nor  was  this  simply  the  judgment  of  the  Governor-Gen- 
eral of  Canada,  for  Earl  Rosebery  wrote  :  "  I  have  to  add 
that  Her  Majesty's  Government  entirely  concurs  in  the  view 
expressed  by  the  Marquis  of  Lansdowne." 

If  the  judgment  of  the  British  Government  on  that  point, 
based  apparently  on  a  system  of  interpretation  which  is 
held  at  Washington  to  be  so  narrow,  strained,  and  technical 
that  it  ignores  not  only  the  motives  which  induced  Ameri- 
cans to  accept  the  Treaty  of  18 18,  but  ignores  also  the  rights 
and  the  duties  that  belong  to  international  comity  and  the 
law  of  nations — if  that  judgment  has  not  been  changed  by 
the  able  and  courteous  arguments  of  Mr.  Bayard  and  Mr. 
Phelps,  and  the  grave  reports  of  Senator  Edmunds  and  Mr. 
Manning,  is  it  likely  to  yield  more  readily  when  the  calm 
of  diplomacy  shall  have  been  interrupted  by  the  irritating 
measures  of  retaliation,  which  Senator  Edmunds'  bill,  or  the 
yet  more  stringent  bill  by  Mr.  Belmont  in  the  House,  ex- 
tending to  Canadian  locomotives  and  cars,  goods,  wares, 


6  THE  FISHERIES  DISPUTE. 

and  merchandise,  authorizes  the  President  to  proclaim? 
Will  it  be  more  easy  to  come  to  an  amicable  understanding, 
after  the  vessels  of  the  British  Dominion  in  America  have 
been  excluded  from  our  ports,  or  Canadian  railway  trains 
stopped  at  the  border,  in  retaliation  for  the  treatment-  of  our 
fishermen  ;  a  treatment  which  the  Ministers  of  Cai  Ja  and 
Great  Britain  declare  is  justified  by  the  strict  letter  of  the 
Treaty  of  1818,  however,  in  the  eyes  of  Americans,  un- 
friendly, inhospitable,  or  even  barbarous  ? 


British  Misconstruction  of  the  Treaty  of  18 18. 

On  one  point  both  Mr.  Bayard  and  Earl  Rosebery,  Mr. 
Phelps  and  Lord  Salisbury  seem  to  be  agreed,  that  the 
Treaty  of  18 18  is  the  law  on  the  interpretation  of  which  de- 
pends the  decision  of  the  question  in  dispute.  But  the  re- 
cent correspondence  on  the  rights  of  American  fishermen, 
submitted  by  the  President  to  the  Senate  on  December  8, 
1886,  shows  that  this  apparently  simple  question  of  inter- 
pretation is,  in  the  view  of  the  Department,  fairly  influenced 
by  the  series  of  laws  and  regulations  referred  to  .by  Mr. 
Bayard,  affecting  the  trade  between  the  British  Provinces  of 
North  America  and  the  United  States,  which  have  since 
been  respectively  adopted  by  the  two  countries,  and  have 
led  to  amicable  and  beneficial  relations  between  their  re- 
spective inhabitants,  building  up  a  trade  between  the  two 
countries  founded  on  mutual  interest  and  advantage,  and 
establishing  a  reciprocal  liberty  of  commerce.  The  ques- 
tion is  next,  as  Mr.  Bayard  and  Mr.  Manning  have  both 
^  shown,  improperly  subjected,  as  regards  American  rights,  to 
acts  of  colonial  legislation  under  a  supposed  delegation  of 
jurisdiction  by  the  Imperial  Government  of  Great  Britain, 
and  seemingly  intended  to  include  authority  to  interpret  and 
enforce  the  provisions  of  the  Treaty  of  1818.  The  effect  of 
the  colonial  legislation  and  colonial  executive  interpreta- 
tion, if  executed  according  to  the  letter,  would  be,  as  Mr. 
Bayard  contends  in  his  letter  to  Sir  L.  B.  Sackville  West, 


THE  FISHERIES  DISPUTE.  7 

of  May  10,  1886,  to  expand  the  restrictions  and  renuncia- 
tions of  the  Treaty  of  1818,  and  to  further  diminish  and 
practically  destroy  the  privileges  expressly  secured  to 
'  American  fishing  vessels  to  visit  the  irishore  waters  for 
shelter,  the  repair  of  damages,  the  purchase  of  wood,  and 
the  obtaining  of  water. 

The  seizure  and  detention,  for  instance,  by  the  Canadian 
authorities  of  the  David  J.  Adams,  which  Mr.  Bayard  in 
his  note  to  Sir  Lionel  B.  Sackville  West,  of  May  20,  1886, 
characterized  as  "  unwarranted,  irregular,  and  severe,""  ap- 
peared to  rest  on  charges  : 

I.  Of  violating  the  Treaty  of  1818. 

II.  Of  alleged  violation  of  the  Act  59  George  III. 

III.  Of  alleged  violation  of  the  colonial  Act  of  Nova 
Scotia  of  181 8,  and 

IV.  Of  alleged  violation  of  Canadian  Statutes  of  1870 
and  1883. 

And  Mr.  Bayard,  in  his  telegram  of  May  22d,  to  Mr. 
Phelps,  refers  to  "  vexatious  interpretations,  and  actions  of 
local  authorities  which  can  only  hinder  an  amicable  award."' 
On  June  14th,  Secretary  Bayard,  in  regard  to  the  allegations 
that  American  vessels  would  not  be  permitted  to  land  fish 
at  Halifax  for  transportation  in  bond  across  the  Province,"- 
and  that  American  vessels  had  been  warned  to  keep  outside 
of  a  line  drawn  from  headland  to  headland,  said  : 

Against  this  treatment  I  must  instantly  and  formally  protest  as  an 
unwarrantable  interpretation  and  application  of  the  Treaty  by  the  of- 
ficers of  the  Dominion  of  Canada  and  the  Province  of  Nova  Scotia  ;  as 
an  invasion  of  the  laws  of  commercial  and  maritime  intercourse  exist- 
ing between  the  two  countries,  and  a  violation  of  hi  pitality  ;  and  for 
any  loss  or  injury  resulting  therefrom  the  Government  of  Her  British 
Majesty  will  be  held  responsible. 

In  reply  to  your  complaints  of  outrages,  the  British  Minister  at 
Washington  has  advised  us  that  the  matter  has  been  referred  to  the 
Dominion  Government,  and  Mr.  Phelps  at  London  has  been  informed 
that  no  further  steps  can  be  taken  about  the  cases  before  the  Canadian 
courts  have  been  adjudicated. 


THE   FISHERIES  DI)5PUTE. 

The  question,  therefore,  of  the  rights  of  American  fisher- 
rrea  under  the  Treaty  of  1818,  is  nv^de  by  the  British  Gov- 
ernment to  depend  not  altogether  on  that  Treaty  alone,  but 
partly,  as  it  would  seem,  on  a  statute  of  George  III.,  on 
colonial  acts  of  the  British  Provinces,  the  rulings  of  Cana- 
dian courts,  and  the  proclamation  and  acts  of  colonial  offi- 
cers— all  assuming  to  be  based  on  the  provisions  of  that 
Treaty.  This  fact  justifies  a  careful  consideration  of  the 
relative  advantages  and  disadvantages  which  result  to  us  at 
this  moment  from  the  Convention  which  for  so  long  a  time 
has  played  a  principal  part  m  this  regretable  and  chronic 
controversy — a  treaty  which  under  the  interpietation  placed 
upon  it  by  Canadian  and  British  officials  is  being  used  not 
as  a  shield  to  protect  our  fishermen  in  the  enjoyment  of  their 
rights,  but  as  a  weapon  for  the  interruption  of  their  business 
and  their  helpless  subjection  to  wrong  and  humiliation. 

This  state  of  things,  which  by  no  means  accords  with  the 
American  idea  of  national  fitness,  and  which  it  is  proposed 
temporarily  to  correct  if  necessary  by  retaliation,  clearly  re- 
quires a  thorough  and  permanent  change,  based  not  on  re- 
taliation for  wrong,  but  on  clear  principles  of  right ;  and  we 
find  two  propositions  from  British  sources  looking  to  a 
peaceful  remedy  which  deserve  respcs-tful  consideration. 


Offers  of  Negotiation  and  Arbitration, 


The  one  is  a  proposition  from  Lord  Kosebery  for  a  frank 
and  friendly  consideratton  of  ihe  whole  question  with  a  view 
to  the  revision  of  the  Treaty  of  1818. 

The  Sicond  is  said  to  be  a  semi-official  proposition  from 
the  Montreal  Gazette ^  the  official  organ  of  the  Dominion 
Government  of  the  25th  of  January,  which  said  :  "  If,  instead 
of  resorting  to  coercive  measures,  the  United  States  Con- 
gress could  consent  to  ARBITRATION,  it  would  adopt  the 
manlier  and  more  dignified  course/' 

Either  of  these  plans,  adopted  by  mutual  agreement,  upon 
a  baris  that  would  certainly  secure  the  original  rights  and 


THE  FISHERIEG  DISPUTE. 


9 


interests  of  our  fishermen  as  recognized  by  Great  Britain  in 
the  Treaty  of  Peace,  would  be  preferable  tc  any  measure 
that  might  bear  the  character  of  opposition  or  retaliation. 
But  without  an  admitted  basis  of  principle  and  right  dis- 
tinctly .formulated,  as  were  the  three  rules  laid  down  for  the 
Geneva  Arbitration,  and  to  which  Great  Britain  wisely  gave 
her  adhesion,  it  would  seem  idle  to  expect  a  satisfactory 
measure  of  justice  either  from  negotiation  or  arbitration. 
Our  recent  negotiations  have  only  served  to  make  more 
clear  the  fact  that  the  two  governments  look  at  the  rights  of 
our  fishermen  from  different  stand-points  ;  and  without  an 
agreement  in  advance  upon  the  rules  by  which  the  arbitra- 
tors are  to  be  guided,  an  award  would  probably  dissatisfy 
the  defeated  party,  and  serve  as  little  to  commend  arbitra- 
tion to  thoughtful  English  or  Americans  as  the  American 
claim  for  indirect  damages  at  Geneva,  or  the  award  of 
the  Belgian  umpire  at  Halifax. 

There  sliould  be  no  difficulty  in  agreeing  on  a  basis 
for  either  negotiation  or  arbitration,  in  the  shape  of  rules 
declaring  the  right  of  our  fishermen  in  language  that  even 
our  Canadian  friends  can  understand,  when  it  is  remembered 
that  their  violation  of  the  Treaty  of  i8i8  has  given  us  a  right 
to  abrogate  that  treaty  ;  arid  that  its  abrogation  would  restore 
our  rights  and  liberties  under  Article  III.  of  the  Treaty  of 
Feace  in  1783,  which  were  renounced  and  surrendered  by 
the  Treaty  of  i8i8,  but  which  would  revive  were  the  Treaty 
of  1818  abrogated;  precisely  as  the  latter  treaty,  after  be- 
ing suspended  by  the  adoption  of  the  Reciprocity  Treaty 
of  1854,  was  revived  by  Its  termination  in  1866;  and  after 
being  again  suspended  by  the  Treaty  of  1 871,  was  again  re- 
stored by  its  termination  in  1885.  If  our  British  friends 
should  hetve  a  doubt  upon  this  point,  and  be  inclined  to 
think  that  our  regard  for  the  sanctity  of  treaties  will  induce 
us  to  pardon  their  violation,  or  that  the  exploded  sugges- 
tion that  our  ancient  fishery  rights  recognized  and  defined 
at  the  peace,  were  lost  by  the  war  of  18 12,  a  glance  at  the 
law  and  the  facts,  at  the  testimony  of  history  and  the  opin- 


10 


THE  FISHERIES   DISPUTE. 


ions  of  English  lawyers,  should  easily  satisfy  them  on  these 
points. 

The  British  Proposition  to  Revise  the  Treaty. 

The  note  of  the  Earl  of  Rosebery  to  Mr.  West,  under 
date  of  July  lo,  1886,  declining  to  discuss  the  competency 
of  the  Canadian  authorities  under  the  existing  statutes,  im- 
perial or  colonial,  to  effect  the  seizure  of  American  vessels 
complained  of,  as  a  question  which  he  says  is  occupying  the 
courts  of  law,  continues:  "I  cannot,  however,  close  this 
despatch  without  adding  that  Her  Majesty's  Government 
entirely  concurs  in  that  passage  of  the  report  of  the  Ameri- 
can Privy  Council,  in  which  it  is  observed  that  '  If  the  pro- 
visions of  the  Convention  of  1818  have  become  inconvenient 
to  either  contracting  par iy  the  utmost  that  good- will  and 
fair  dealing  v~an  suggest  is  that  the  terms  shall  be  reconsid- 
ered.'"    Loid  Rospl^ery  adds: 

It  js  assuredly  from  no  fault  on  the  part  of  Her  Majesty's  Govern- 
ment that  the  question  has  now  been  relegated  to  the  terms  of  the 
Convention  of  1818.  They  have  not  ceased  to  express  their  anxiety 
to  commence  negotiations,  and  they  are  now  prepared  to  enter  upon  a 
frank  and  friendly  consideration  of  the  whole  question,  with  the  most 
earnest  desire  to  arrive  at  a  settlement  consonant  alike  with  the  rights 
and  interests  of  Canada  and  the  United  States. 


ill- 


Does  not  this  suggestion,  originating  with  the  Canadian 
Privy  Council  and  entirely  concurred  in  by  Great  Britain, 
point  to  the  fact  from  which  we  do  not  dissent,  that  the 
Convention  of  1818  lies  at  the  bottom  of  the  difficulties 
which  it  is  proposed  to  correct  by  Presidential  proclamation, 
and  that  that  Convention  must  be  satisfactorily  revised,  or 
entirely  abrogated,  before  we  can  reach  a  satisfactory  and 
permanent  settlement  of  the  fisheries  question. 

Admitting  Lord  Rosebery  to  be  in  the  right  in  con- 
tending that  it  was  from  no  fault  on  the  part  of  Her  Majes- 
ty's Government  that  the  question  has  b.  en  relegated  to  the 


i 


THE  FISHERIES  DISPUTE. 


terms  of  the  Convention  of  1818,  and  recognizing  the  frank 
and  friendly  assurance  of  their  most  earnest  desire  to  arrive 
at  a  settlement  consonant  with  the  rights  and  interests  of 
the  United  States,  it  will  be  less  easy  to  defend  the  British 
Government  from  the  grave  responsibility  of  having  persist- 
ently instigated,  first  at  Ghent,  and  again  at  London,  the 
adoption  of  the  Article  of  1 8 1 8  by  their  persistence  in  the  bold 
assertion,  which  British  law  officers  had  shown  to  be  un- 
sound, that  we  had  lost  by  the  War  of  1812  our  original  and 
ancient  rights  to  the  fisheries  as  recognized  and  defined  in 
the  Treaty  of  Peace,  and  by  their  acting  in  advance  on  that 
groundless  suggestion  as  soon  as  the  war  had  closed,  by 
warning  and  seizing  our  fishing  vessels  without  reason  and 
without  law. 

Nothing,  therefore,  could  more  become  the  noblest  char- 
acteristics of  the  British  Government  and  the  British  people, 
than  a  frank  and  practical  exhibition  of  the  honorable  desire 
expressed  by  Lord  Rosebery  to  arrive  at  a  just  settlement 
of  the  question.  If  they  assent  to  the  abandonment  of  the 
Convention  of  1818,  fraught  as  it  is  with  errors  of  law  and 
wrongful  acts,  and  which  for  two  generations  has  crippled  our 
fishermen  in  their  ancient  rights,  and  subjected  the  Repub- 
lic to  vexations  and  aflfronts  which  have  become  so  intoler- 
able that  the  gravest  legislative  body  in  the  Republic  is 
ready  for  retaliation  ;  if  they  assent  to  a  return  to  the  fair 
division  of  the  fisheries  made  by  the  two  empires  at  the 
peace  of  1783 — and  when  they  recall  the  part  borne  by 
Americans,  and  especially  the  New  Englanders,  during 
two  centuries  in  securing  the  fisheries, 'they  may  well  ad- 
mire the  moderation  of  our  demands  and  the  generosity  of 
our  concessions — there  would  seem  to  be  no  shadow  of  rea- 
son why  the  entire  question  of  the  fisheries  should  not  be 
arranged  with  good-will  on  all  sides ;  and  with  a  common 
disposition  to  advance  in  our  commercial  arrangements  the 
mutual  interests  of  Great  Britain,  Canada,  and  the  United 
States. 

A  glance  at  the  recent  treatment  of  our  fishing  vessels 


=K 


12 


THE  FISHERIES  DISPUTE. 


will  help  to  show  whether  there  is  any  reasonable  proiipect 
of  an  amicable  arrangement,  especially  in  view  of  the  pro- 
posed measures  of  retaliation,  on  the  basis  of  the  Article  of 
l8i8,  as  interpreted  by  the  British  Government,  and  will 
exhibit  the  solid  grounds  for  the  belief  expressed  at  Wash- 
ington that  that  convention  has  been  directly  violated  by 
the  British  both  in  legislation  and  in  practice. 


:l 


The  Recent  Treatment  of  American  f'lSHiNG  Ves- 
sels. 

Looking  at  the  correspondence,  it  would  seem  as  if  every 
attempt  on  our  part  fo  •  an  amicable  arrangement  had  be- 
come hopeless  through  Lhe  irreconcilable  difference  of  view 
as  to  the  rights  of  Ajmericans  under  the  Treaty  of  i8l8,  and 
an  apparent  confidence  on  the  part  of  our  Canadian  neigh- 
bors, which  seems  to  have  increased  rather  than  diminished 
since  our  payment  of  the  Halifax  award,  that  We  have  no 
rights  to  protect,  and  no  treaty  stipulation  under  which  we 
can  claim  protection.  The  peaceful  efforts  of  our  Govern- 
ment have  been  ineffectual,  and  their  just  hopes  have  been 
disappointed.  In  April,  1886,  Mr.  Bayard  wrote  to  Messrs. 
Gushing  and  McKennay,  of  Portland,  who  had  fishing  ves- 
sels ready  for  the  Banks-,  and  who  had  asked  if  their  fishing 
vessels  could  call  at  Canadian  ports  for  men  and  be  pro- 
tected in  so  doing  : 

...  I  expect  to  obtain  such  an  understanding  as  will  relieve  our 
fishermen  from  all  doubts  or  risk  in  the  exercise  of  the  ordinary  com- 
mercial privileges  of  friendly  ports,  to  which,  under  existing  laws  of 
both  countries,  I  consider  their  citizens  to  be  mutually  entitled  free 
from  molestation.  .  .  . 

On  July  26,  1886,  President  Cleveland'sent  to  the  Sen- 
ate a  Report  of  the  Secretary  of  State  relating  to  the  seiz- 
ures and  detentions  of  American  vessels  in  Canadian 
waters,  in  which  Mr.  Bayard  referred  to  the  correspon- 
dence then  pending  as  one  "  which  it  is  believed  must  soon 
terminate  in  an  amiable  settlement  mutually  just  and  hoi- 


THE  FISHERIES  DISPUTE. 


n 


orable   and   therefore  satisfactory  to   both   countries  and 
their  inhabitants."  . 

But  if  we  look  at  the  correspondence  submitted  by  the 
President  on  December  8,  1886,  and  again  on  February  8, 
1887,  we  find  the  treatment  of  our  fishermen  more  intoler- 
able than  ever. 

The  case  of  the  Rattler,  seeking  shelter  from  a  storm  in 
the  harbor  of  Shelburne,  Nova  Scotia,  induced  Mr.  Bayard 
to  say  to  Mr.  Hardinge  (August  9,  1886):  "The  hospi- 
tality which  al'  civilized  nations  prescribe  has  thus  been 
violated  and  THE  STIPULATIONS  OF  A  TREATY  GROSSLY  IN- 
FRACTED.'' 

>  In  the  case  of  the  Shiloh  and  Julia  Ellen,  Mr.  Bayard 
(August  18,  1886)  protested  •'  against  the  hostile  and  out- 
rageous misbehavior  of  Captain  Quigley,  of  the  Canadian 
cruiser,  Terror,"  and  said,  '•  the  firing  of  a  gun  across  their 
bows  was  a  most  unusual  and  wholly  uncalled-for  exhibi- 
tion of  hostility,  and  equally  so  was  the  placing  of  armed 
men  on  board  the  lawful  and  peaceful  craft  of  a  friendly  na- 
tion," although  Captain  Quigley  gave  another  version  of 
his  acts.  In  the  case  of  the  "  Mollie  Adams,"  whose  water- 
tank  had  been  burst  by  heavy  weather,  and  whose  master 
was  refused  permission  by  the  Collector  at  Port  Mulgrave 
to  purchase  two  or  three  barrels  to  hold  water  on  their 
homeward  voyage,  the  vessel  was  compelled  to  put  to  sea 
with  an  insufficient  supply  of  water,  and  in  trying  to  make 
another  port  wherein  to  obtain  it,  encountered  a  gale  which 
swept  away  a  deck-load  o(  fish  and  two  seine  boats,  and 
Mr.  Bayard  (September  !0,  1886)  denounced  the  conduct 
of  the  custom  officer  as  "  inhospirable  and  inhuman." 

Again,  September  23,  1886,  Mr.  Bayard  had  to  complain 
of  the  treatment  of  the  A.  R.  Crittenden,  whose  master 
stopped  at  Steep  Creek  for  water,  and  was  told  by  the 
Customs  Officer  that  if  he  took  in  water  his  vessel  would  be 
seized,  whereupon  he  sailed  without  the  needed  supply,  and 
was  obliged  to  put  his  men  on  a  short  allowance  of  water 
during  the  passage  homeward.     Mr.  Bayard  characterized 


14 


THE  FISHERIES  DISPUTE. 


this  conduct  as  "  unlawful  and  inhuman,"  and  as  affording 
*'  an  illustration  of  t'le  very  vexatious  spirit  in  which  the 
officers  of  the  Dominion  of  Canada  appear  to  seek  and  pe- 
nalize and  oppress  those  fishing  vessels  of  the  United  States, 
lawfully  engaged  in  fishing,  which  from  any  cause  are 
brought  within  their  reach." 

On  November  6,  1886,  Mr.  Bayard  wrote  to  Mr.  Phelps  : 

The  hospitality  of  Canadian  coasts  and  harbors,  which  are  ours  by 
ancient  right,  and  which  these  treaties  confirm,  costs  Canada  nothing, 
and  are  productive  of  advantages  to  her  people.  Yet,  in  defiance  of 
the  most  solemn  obligations,  in  utter  disregard  of  the  facilities  and 
assistances  granted  by  the  United  States,  and  in  a  way  especially  irri- 
tating, a  deliberate  plan  of  annoyances  and  aggressions  has  been  insti- 
tuted and  plainly  exhibited  during  the  last  fishing  season,  a  plan  cal- 
culated to  drive  these  fishermen  from  shores  where,  without  injury  to 
others,  they  prosecute  their  own  legitimate  and  useful  industry. 

It  is  impossible  not  to  see  that. if  the  unfriendly  and  unjust  sys- 
tem, of  which  these  cases  now  presented  are  a  part,  is  sustained  by 
Her  Majesty's  Government,  serious  results  will  almost  necessarily 
ensue,  great  as  the  desire  of  this  Government  is  to  maintain  the  re- 
lations of  good  neighborhood  (49th  Congress,  2d  Session,  House  of 
Representatives,  Ex.  Doc.  19,  p.  160). 

The  question  asked  by  Mr.  Bayard  of  Sir  Lionel  West 
(May  10,  1886)  is  still  the  question  before  the  country : 

Whether  such  a  construction  is  admissible  as  would  convert  the 
Treaty  of  1818,  from  being  an  instrumentality  for  the  protection  of  the 
in-shore  fisheries  along  the  described  parts  of  the  British  American 
coasts,  into  a  pretext  or  means  of  obstructing  the  business  of  deep- 
sea  iishing  by  citizens  of  the  United  States,  and  of  the  interrupting  and 
destioying  the  commercial  intercourse  that  since  the  Treaty  of  1818, 
and  independent  of  arty  treaty  whatever,  has  grown  up  and  now  ex- 
ists under  the  concurrent  and  friendly  laws  and  mercantile  regulations 
of  the  respective  countries  (42d  Congress,  2d  Session,  House  of 
Representatives,  Ex.  Doc,  p.  9). 

The  wide  and  irreconcilable  differences  between  the  view 
of  American  rights  under  the  Treaty  of  1818  taken  by  Mr. 
Bay  ud,  Mr.  Phelps,  and  l^Ir.  Senator  Edmunds,  represent- 


THE  FISHERIES  DISPUTE. 


15 


rding 
h  the 
id  pe- 
states, 
e    are 

helps  : 

ours  by 
lothing, 
fiance  of 
[ties  and 
ally  irri- 
:en  insti- 
plan  cal- 
injury  to 

•y- 

ijust  sys- 
ained  by 
ecessarily 
in  the  re- 
House  of 


lel  West 
:ry: 

invert  the 
[ion  of  the 
I  American 

of  deep- 
lipting  and 
]y  of 1818, 
Id  now  ex- 
[egulations 

House  of 


the  view 
In' by  Mr. 
lepresent- 


ing  the  Committee  on  Foreign  Relations  in  the  Senate,  and 
by  Mr.  Belmont,  representing  the  like  Committee  in  the 
Hous'',  and  the  view  of  our  rights  under  that  treaty  taken 
by  the  Canadian  authorities,  and  adopted  or  acquiesced  in 
by  the  British  Government,  seem  to  show  the  hopelessness 
of  coming  to  an  agreement  under  that  treaty. 

The  Decided  View  of  Secretary  Manning. 

The  Secretary  of  the  Treasury,  Mr.  Manning,  in  his  very 
able  response  to  the  Committee  on  Foreign  Affairs  in  the 
House  of  Representatives,  dated  February  6,  1887,  on  the 
fisheries  question,  says  (p.  4)  : 

It  is  impossible  not  to  recognize  how  justly  my  colleague,  Mr. 
Bayard,  has  portrayed  the  inhumanity  and  brutality  with  which  cer- 
tain Canadian  officials  treated  defenceless  American  fishermen  during 
the  last  summer,  even  those  who  had  gone  out  of  their  way  to  rescue 
Canadian  sailors,  and  having  entered  a  Canadian  bay  to  safely  land 
those  they  had  saved,  attempted  to  procure  food  to  sustain  their  own 
lives. 

Mr.  Manning  shows  that  the  "restrictions"  enforced 
by  Canadian  statutes  and  officials  against  our  fishermen, 
under  pretence  of  restricting  commercial  privileges,  are,  in 
fact,  in  violation  of  our  fishing  rights  and  of  the  Treaty  of 
1818,  and  he  tells  us  of  a  new  Canadian  Act,  approved  by 
the  Queen  in  Council  on  November  26,  1886,  entitled  "  An 
Act  further  to  amend  the  Acts  respecting  fisheries  bv  for- 
eign vessels,"  and  Mr.  Manning  says  : 

The  Canadian  Act  thus  having  the  royal  approval  was  intended, 
as  has  been  openly  avowed,  to  forfeit  any  American  fishing  vessel 
which  is  found  having  entered  Canadian  waters,  or  the  port  of  Halifax, 
to  buy  ice,  bait,  or  other  articles,  or  for  any  purpbse  other  than  shelter, 
repairs,  wood,  or '.vater.  That  we  deny,  and  reply  that  such  legisla- 
tion is  a  repeal  and  annulment  by  England  of  the  arrangement  made 
in  1830,  and  to  that  repeal  we  are  entitled  to  respond  by  a  similar  re- 
peal of  our  own  law,  and  by  a  refusal  hereafter,  and  while  debate  or 
negotiation  goes  on,  to  confer  hospitality  or  any  privilege  whatever  in 
our  ports  on  Canadian  vessels  or  bqats  of  any  sort.     A  violation  of 


ill 


li 


16 


THE   FISHERIES  DISPUTE. 


amity  may  be  looked  upon  as  an  unfriendly  act,  but  not  a  cause  for 
a  just  war.  England  may  judge  for  herself  of  the  nature  and  extent 
of  the  amity  and  courtesy  she  will  show  to  us.  In  the  present  case  we 
do  not  progipse  retaliation  ;  we  simply  respond — we,  too,  suspend  am- 
ity and  hospitality. 

The  View  of  the  Senate  Committee. 

The  report  of  Senator  Edmunds  on  behalf  of  the  Com- 
mittee on  Foreign  Relations  (49th  Congress,  2d  Session, 
Senate  Report,  No.  1,683,  January  19,  1887),  after  a  careful 
analysis  of  the  treaties  and  of  the  British  Canadian  legisla- 
tion on  the  fisheries  question,  including  "  An  Act  further  to 
amend  the  Acts  respecting  fisheries  by  foreign  vessels,"  ap- 
proved by  the  Queen  in  Council,  November  26,  1886,  com- 
mented on  by  Secretary  Manning,  and  after  remarking  : 

From  all  this  it  would  seem  that  it  is  the  deliberate  purpose  of  the 
British  government  to  leave  it  to  the  individual  discretion  of  each  one 
of  the  numerous  subordinate  magistrates,  fishery  officers,  and  customs 
officers  of  the  Dominion  of  Canada  to  seize  and  bring  into  port  an^y 
American  vessels,  whether  fishing  or  other,  that  he  finds  within  any 
harbor  in  Canada,  or  hovering  within  Canadian  waters.  The  statute 
does  not  even  except  that  Canadian  waters  in  which  a  large  part  of  the 
southern  coast  and  the  whole  of  the  western  coast  of  Newfoundland 
they  are  entitled  to  fish,  to  say  nothing  of  the  vast  extent  of  the  con- 
tinental coast  of  Canada. 

The  Committee  repeats  its  expression  of  the  firm  opinion  that  this 
legislation  is  in  violation  of  the  Treaty  ^1818,  as  it  respects  American 
fishing  vessels,  and  in  violation  cf  the  principles  of  amity  and  good 
neighborhood  that  ought  to  exist  in  respect  of  commercial. intercourse 
or  the  coming  of  the  vessels  of  either  having  any  commercial  character 
within  the  waters  of  the  other.  Had  it  been  intended  to  harass  and 
embarrass  Atrierican  fishing  and  other  vessels,  and  to  make  impracti- 
cable further  to  enjoy  their  treaty  and  other  common  rights,  such  legis> 
lation  would  have  been  perfectly  adapted  to  that  end. 

With  this  uniformity  of  agreement  on  the  point  that  Great 
Britain  is  deliberately  violating  the  treaty  of  18 18,  and  with- 
holding the  privileges  to  our  fishermen  in  consideration  of 
which  we  surrendered  our  olden  rights  and  libertiec  in  the 


1  !•  1 


THE  FISHERIES  DISPUTE. 


J7 


:ausc  for 
id  extent 
t  case  we 
pend  am- 


[le  Corn- 
Session, 
a  careful 
1  legisla- 
urther  to 
ids,"  ap- 
[86,  corn- 
king  : 

pose  of  the 
Df  each  one 
nd  customs 
:o  port  any 
within  any 
le  statute 
part  of  the 
wfoundland 
of  the  con- 
on  that  this 
American 
and  good 
intercourse 
al  character 
larass  and 
Le  impracti- 
such  legis- 

that  Great 
and  with- 
leration  of 
ties  in  the 


Newfoundland  fisheries,  can  we  consent  with  a  due  regard 
to  national  fitness  to  any  further  delays  ?  Is  there  any  good 
reason  why  we  should  not  notify  Great  Britain  that  unless 
our  rights  under  the  treaty,  as  we  understand  them,  are  at 
once  recognized  and  permanently  protected,  we  propose  to 
abrogate  the  first  article  of  the  Treaty  of  i8i8,  as  for  a  sim- 
ilar reason — non-performance  of  contract — we  terminated 
in  the  last  century  out  treaties  with  France. 

Abrogation   of   Treaties   for   Violation   of  'Con- 
tract. 

On  July  I,  1798,  Congress  annulled  by  act  th;;  trea- 
ties with  France  made  in  1778,  stating  among  the  reasons 
for  the  act,  that  these  treaties  had  been  repeatedly  violated 
on  the  part  of  the  French  Government ;  that  the  just  claims 
of  the  United  States  for  reparation  of  the  injuries  so  com- 
mitted have  been  refused,  and  that  there  was  still  pursued 
against  the  United  States  a  system  of  prevailing  violence 
infracting  the  said  treaties  and  hostile  to  the"  rights  of  a 
free  and  independent  nation  (i  U.  S.  Stat.,  1.,  578 ;  Whar- 
ton's International  Law  Digest,  137  a). 

The  act  was  sustained  by  the  American  envoys,  Messrs. 
Ellsworth,  Davie,  and  Murray,  in  a  letter  to  the  French  en- 
voys, Jtily  23,  1800,  on  the  ground  of  prior  violation  by 
France. 

It  was  remarked  that  treaties  being  a  mutual  compact,  a  palpa- 
able  violation  of  it  by  one  party  did,  by  the  law  of  nature  and  of  na- 
tions, leave  it  optional  with  the  other  to  renounce  and  declare  the  same 
to  be  no  longer  obligatory  ;  and  that  of  necessity  there  being  no  com- 
mon tribunal  to  which  they  coald  appeal,  the  remaining  party  must 
decide  whether  there  had  been  such  violation  on  the  other  part  as  to 
justify  renunciation. 

To  the  further  suggestion  that  the  laws  of  nations  ad- 
mitted of  a  dissolution  of  treaties  only  by  mutual  con- 
sent or  war,  it  was  remarked  by  the  American  envoys 
that   Vattei   in  particular,  the  best  approved   of  modern 


i8 


THE  FISHERIES  DISPUTE. 


i  <  I 


4 


writers,  not  only  held  that  a  treaty  violated  by  one  party 
might  for  that  reason  be  renounced  by  the  other,  but  that 
when  there  were  two  treaties  bet\yeen  the  same  parties, 
one  might  be  rendered  void  in  that  way,  and  the  other  re- 
main in  force. 

Mr.  Madison  wrote  to  Mr.  Edmund  Pendleton,  January 
2,  1791  (1.  Madison's  Works,  524) : 

That  the  contracting  power  can  annul  the  treaty  cannot  I  pre- 
sume be  questioned,  the  same  authority  precisely  being  exercised  in 
annulling,  as  in  making  a  treaty. 

T/iat  a  breach  on  one  side  {even  of  a  single  article,  each  being  con- 
sidered as  a  condition  of  every  other  article)  discharges  the  other,  is 
as  little  questionable,  but  with  this  reservation  that  the  other  side  is  at 
liberty  to  take  advantage  or  not  of  the  breach,  as  dissolving  the 
treaty.     .     .     . 

It  Ts,  of  course,  desirable  that  whatever  disposition  is 
made  of  the  Fisheries  Convention  of  1*8 18,  which  has  so  long 
been  a  source  of  trouble,  should  be  made  by  mutual  consent, 
and  that  with  its  departure  the  international  differences 
should  cease.  But  if  Great  Britain,  under  whatever  influence, 
should  refuse  her  assent  to  this,  and  if  our  Government  is 
satisfied  not  only  that  we  are  entitled  to  abrogate  the  treaty, 
but  that  the  rights  of  our  citizens  and  the  national  dignity 
demand  its  abrogation,  a  review  of  historic  facts  and  of  the 
law  of  nations  applicable  to  the  Treaty  of  1783,  and  of  the 
opinions  of  learned  crown  lawyers  of  Great  Britain  and  of 
distinguished  jurists  in  the  United  States,  all  seem  to  unite  in 
showing  that  the  abrogation  of  the  first  article  of  the  Treaty 
of  i8i8  would  revive  in  full  force  our  original  rights  as  de- 
fined in  the  third  article  of  the  Treaty  of  Peace  in  1783. 
The  article  which  would  be  thus  restored  is  as  follows : 


Article  III. 

It  is  agreed  that  the  people  of  the  United  States  shall  continue  to 
enjoy  unmolested  the  right  to  take  fish  of  every  kind  on  the  sand  barik 
and  all  the  other  banks  of  Newfoundland,  also  in  the  Gulf  of  St.  Law- 
rence, and  at  all  other  places  in  the  sea,  where  the  inhabitants'  of  both 
countries  used  at  any  time  heretofore  to  fish. 


THE  FISHERIES   DISPUTE. 


IQ 


And  also  that  the  inhabitants  of  the  United  States  shall  hnve  lib- 
erty to  take  fish  of  every  kind  on  such  part  of  the  coast  of  Newfound- 
land as  British  fishermen  shall  use  (but  not  to  dry  or  cure  the  same  on 
that  island),  and  also  on  the  coasts,  bays,  and  creeks  of  all  other  of 
his  Britannic  Majesty's  Dominions  in  America  ;  and  that  the  American 
fishermen  shall  have  liberty  to  dry  and  cure  fish  in  any  of  the  unsettled 
bays,  harbors,  and  creeks  of  Nova  Scotia,  Magdalen  Islands,  and  Lab- 
rador, so  long  as  the  same  shall  remain  unsettled  ;  but  so  soon  as  the 
same  or  either  of  them  shall  be  settled,  it  shall  noi  be  lawful  for  the 
said  fishermen  to  dry  or  cure  fish  at  such  settlements  without  a  previ- 
ous agreement  for  that  purpose  with  the  inhabitants,  proprietors,  or 
possessors  of  the  land. 


The  Newfoundland  Fisheries  in  European  and 
American  History. 


continue  to 


Before  passing  to  the  unsuccessful  attempt  of  the  British 
Commissioners  at  Ghent,  at  the  close  of  the  War  of  1812,  to 
persuade  the  American  Commissioners  that  the  fisheries 
article  had  been  abrogated  by  the  war,  and  to  their  greater 
success  in  London  in  1818,  when  Messrs.  Rush  and  Gallatin 
voluntarily  surrendered  our  olden  rights  and  consented  to 
the  conditions  under  which  our  fishermen  are  now  so  ill- 
treated,  it  may  be  well  to  recall  some  of  the  principal  in- 
cidents that  preceded  and  attended  the  I'reaty  of  Peace, 
and  which  explain  the  regard  shown  by  the  old  Congress  to 
the  value  of  the  fisheries,  and  the  rights  of  the  fishermen  : 
and  the  difficulties  which  had  to  be  overcome  by  the  Ameri- 
can Commissioners  at  Paris  before  they  could  secure  for  the 
young  republic  the  rights  and  liberties  guaranteed  by  Arti- 
cle III.,  and  which  by  the  Treaty  of  18 18  were  needlessly 
surrendered. 

Senator  Edmunds  remarked,  in  the  North  American  Re- 
view ^  that  "  no  permanent  gain  for  American  interests  has 
been  made  since  the  Treaty  of  1783."  As  regards  our  fish- 
ermen, were  the  technical  reasoning  of  our  Canadian  neigh- 
bors to  be  accepted  as  correct,  it  might  be  said  that  Ameri- 
can diplomacy  had  stripped  them  of  their  right  to  decent 


20 


THE   FISHERIES   DISPUTE. 


and  hospitable  treatment  conferred  by  the  law  of  God,  and 
•  recognized  a3  sacred  by  the  law  of  nations. 

The  history  of  the  Newfoundland  fisheries,  of  which  an 
interesting  sketch  is  given  in  the  learned  report  of  the  late 
Lorenzo  Sabine,  of  Massachusetts,  submitted  by  the  Hon. 
Thomas  Corwin,  Secretary  of  the  Treasury  in  1853,  throws 
light  not  only  upon  the  estimate  of  their  importance  by  the 
American  Congress,  but  by  the  courts  of  England,  of 
France,  and  of  Spam. 

The  Newfoundland  fisheries  were  known  to  the  Bis- 
cayans  and  Normans  in  1504,  and  in  15 17  fifty  ships  of  dif- 
ferent nations  were  engaged  in  them.  In  l$77,  the  French 
employed  one  hundred  and  fifty  vessels,  and  by  Henry  IV., 
and  his  great  Minister  Sully,  the  Newfoundland  cod-fishery 
was  placed  undei*  the  care  of  the  government,  and  to  her 
fisheries  France  was  indebted  for  her  possessions  in  Amer- 
ica. 

The  first  difficulties  from  rival  grants  of  land  by  France 
and  England  occurred  in  Acadia,  which  embraced  the  pres- 
ent colonies  of  Nova  Scotia,  and  New  Brunswick  and 
Maine,  between  the  Kennebec  and  the  St.  Croix  Rivers. 
These  were  limited  by  the  Treaty  of  St.  Germain  in  1683, 
by  which  Charles  I,,  who  had  married  a  French  princess, 
resigned  certain  places,  whose-  cession  was  afterward  held 
to  be  fraudulent  by  Cromwell,  who  erected  Nova  Scotia 
into  a  colony,  and  after  the  restoration  of  the  Stuarts,  by 
the  Treaty  of  Breda  in  1667,  it  passed  a  second  time  to 
France.  A  third  treaty,  that  of  London  in  1686,  confirmed 
the  two  powers  in  their  respective  colonies.  On.  the  proc- 
lamation of  war  between  England  and  France  on  the  acces- 
sion of  William  and  Mary,  Massachusetts  commenced  prep- 
arations for  the  conquest  of  Nova  Scotia  and,  Canada, 
under  Sir  William  Phipps  ;  and  at  the  peace  of  Ryswick,  in 
1697,  Nova  Scotia  was  again  returned  to  the  French,  who 
promulgated  a  claim  to  the  sole  ownership  of  the  fisheries, 
Villabon,  Governor  of  Nova  Scotia,  notified  the  Governor 
of  Massachusetts  of  royal  instructions  from  France  to  seize 


THE  FISHERIES  DISPUTE. 


21 


every  American  fisherman  who  ventured  east  of  the  Kenne- 
bec River  into  Maine,  and  the  historian  writes,  "  On  both 
sides  the  strife  was  for  the  monopoly  and  for  the  mastery." 

In  1699  came  to  Boston  the  Earl  of  Bellamont.  In  the 
first  year  of  Queen  Anne,  the  two  nations  ^ere  again  at 
war,  and  among  the  causes  were  the  claims  of  France  to  a 
part  of  Maine  and  the  whole  of  the  fishing  grounds.  The 
people  of  New  England  engaged  heartily  in  the  contest  and 
equipped  a  fleet  at  Boston  ;  and  alter  a  doubtful  struggle 
in  1 7 10  Nova  Scotia  became  an  English  province,  and  the 
'  Home  Ministry  attempted  the  conquest  of  Canada,  a 
scheme  designed  by  Bolingbroke  and  mismanaged  by  a 
Commander  Hill,  who,  with  troops  fresh  from  the  victories 
of  Marlborough,  aided  by  trained  colonists  of  New  England, 
lost  by  wreck  i^  the  passage  up  the  St.  Lawrence  eight 
ships  and  more  than  eight  hundred  men. 

By  the  Treaty  of  Utrecht,  in  1713,  England  obtained  the 
supremacy  and  monopoly  of  the  fisheries  of  our  seas,  and 
the  Tory  statesmen,  headed  by  Oxford  and  Bolingbroke,  safe 
from  foreign  dangers,  quarrelled  among  themselves.  Ox- 
ford was  impeached  for  high  treason  by  the  House  of  Com- 
mons and  committed  to  the  Tower,  and  among  the  charges 
against  him  was  that  Robert  Earl  of  Oxford  and  Earl  Mor- 
timer had  in  defiance  of  an  act  of  Parliament  advised  their 
Sovereign  that  "  the  subjects  of  France  should  have  the 
liberty  of  fishing  and  drying  fish  in  Newfoundland."  "But 
such,"  wrote  the  historian,  "  has  been  the  advance  of  civili- 
zation, and  of  the  doctrine  of  human  brotherhood,  that  an 
act  which  was  a  flagrant  crime  in  his  own  age  has  become 
one  honorable  to  his  memory.  The  great  principle  he  thus 
maintained  in  disgrace,  that  the  seas  of  British  America  are 
not  to  be  held  by  British  subjects-  as  a  monoply,  and  to  the 
exclusion  of  all  other  people,  has  never  since  been  wholly 
disregarded  by  any  British  Minister,  and  we  may  hope  will 
even  now  appear  in  British  diplomacy  to  mark  the  progress 
of  liberal  principles  and  of  man's  humanity  to  man." 

The  French,  undismayed  by  the  loss  of  Nova  Scotia, 


lil! 


THE  FISHERIES  DISPUTE. 


settled  and  fortified  Cape  Breton,  and  in  1721  their  fleet  of 
fishing  vessels  was  larger  than  ever  and  said  to  be  quite 
four  hundred. 

In  1745  England  ?nd  France  were  again  at  war,  and  the 
conquest  of  Gape  Breton  was  undertaken,  and  Louisbourg, 
named  in  honor  of  the  King,  was  the  point  of  attack — 
"  twenty-five  years  and  thirty  million  of  livres  had  been  re- 
quired to  complete  it,  and  more  than  two  hundred  cannon 
v.ere  mounted  to  defend  it.  So  ;ireat  was  its  strength 
that  it  was  called  '  The  Dunkirk  of  America.'  It  had  nun- 
neries and  palaces,  terraces  and  gardens.  That  such  a  city 
rose  u^yon  a  lone  desolate  isle  in  the  infancy  of  American 
colonization  appears  incredible  ;  explanation  is  alorre  found 
in  the  fishing  enthusiasm  of  the  period."  The  fleet  sailed 
from  Boston  in  March.  The  colonial  ships  and  the  royal 
squadron,  supported  by  the  colonists  on  shore,  maintained 
the  siege  with  surprising  energy.  Nine  thousand  cannon- 
balls  and  six  hundred  bombs  were  discharged  by  the  assail- 
ants, fifteen  hundred  of  whom,  badly  sheltered  and  exposed 
to  cold  and  fog,  became  unfit  for  duty,  and  yet  on  the  forty- 
ninth  day  of  the  investment  the  French  commander  surren- 
dered, and  Pepperell,  by  keeping  the  French  flag  flying, 
lured  within  their  grasp  ships  with  cargoes  of  great  value. 
Thirty  years  later  the  capture  was  pronounced  in  the  House 
of  Commons  "  an  everlastirig  memorial  tc  the  zeal,  courage, 
and  perseverance  of  the  troops  of  New  England." 

"  With  the  present  condition  of  Cape  Breton  in  view," 
remarks  Mr.  Sabine,  "  we  almost  imagine  that  we  hold  in 
our  hands  books  of  fiction  rather  than  the  records  of  the  real, 
when  we  read  as  we  do  in  Smollett  that  the  conquest  of 
Louisbourg  was  '  the  most  important  achievement  of  the 
war  of  1744,'  and  in  the  Universal  History  that  '  New  Eng- 
land gave  peace  to  Europe  by  raising  an  army  and  trans- 
porting four  thousand  men,  whose  success  proved  an  equiva- 
lent for  all  the  successes  of  France  on  the  Continent.'  " 

By  the  peace  of  Aix-la-Cliapelle  in  1748,  which  has  been 
pronounced  dishonorable  to  England  at  home  and  in  her 


THE  FISHERIES  DISPUTE. 


23 


colonies,  Cape  Breton  was  restored  to  France,  .nd  among 
the  results  of  that  peace  was  counted  tJ!:\e  alienation  of  the 
affection  of  the  people  of  New  England,  who  felt  that  the 
House  of  H-anover,  like  the  Stuarts,  were  ready  to  sacrifice 
•■heir' victories  and  their  interests  as  "  equivalents"  for  de- 
feats and  disasters  in  Europe. 

In  1756  came  another  war  between  Great  Britain  and 
France,  and  two  y«ars  later  the  second  siege  ofLouisbourg 
by  twenty  ships  of  the  line,  eighteen  frigates,  a  fleet  of  smaller 
vessels,  and  an  army  of  fourteen  thousand  men.  The  suc- 
cess of  this  expedition,  in  which  Wolfe  commanded  a  corps, 
caused  great  rejoicings  in  England,  and  the  French  colours 
were  deposited  at  St.  Paul's.  In  this  last  war  Americans 
bore  a  distinguished  part,  and  it  was  said  in  the  House  of 
Commons  that  of  the  seamen  employed  in  the  British  navy 
ten  thousand  were  natives  of  America.  Among  the  promi- 
nent actors  were  many  who  became  prominent  :n  our  revo- 
lution. With  Pepperell  at  Louisbourg  were  Thornton,  a 
signer  of  the  Declaration  of  Independence;  Bradford, 
Gridley,  who  laid  out  the  works  on  Bunker  Hill  ;  and  on  the 
frontiers  of  Virginia  and  in  the  West  was  Washington.  En- 
gaged in  one  or  other  of  the  French  Wars  were  Sears,  Wol- 
cott,  Williams,  and  Livingston,  all  among  the  signers  ;  Pres- 
cott,  Montgomery,  Gates,  Mercer,  Morgan,  Thomas,  James 
Clinton  (the  father  of  DeWitt  Clinton),  Stark,  Spencer,  the 
Putnams,  Nixon,  St.  Clair,  Gibson,  Bull,  Durke,  Butler, 
Campbell,  and  Chief  Justice  Dyer  of  Connecticut.  It  was, 
says  Sabine,  in  Nova  Scotia  and  Canada  and  Ohio,  at  Port 
Royal,  Causeam,  Louisbourg,  Quebec,  and  in  the  wilds  of 
Virginia,  that  our  fathers  acquired  the  skill  and  experience 
necessary  for  the  successful  assertion  of  our  rights. 

By  the  Treaty  of  Paris  in  1763,  when  Canada  and  its 
dependencies  were  formally  ceded  to  Great  Britain,  France 
received  the  right  of  fishing  and  drying  on  the  coast  of 
Newfoundland,  as  provided  by  the  Treaty  of  Utrecht,  but 
at  a  distance  of  fifteen  leagues  from  Cape  Breton — a  con- 
cession which  was  viewed  with  great  displeasure  in  England, 


24 


THE  FISHERIES  DISPUTE. 


where  it  was  said  that  "  the  fisheries  were  worth  more  than 
all  Canada." 

When  in  1778  a  treaty  of  commerce  was  made  between 
the  United  States  and  France,  it  was  provided  by  articles 
IX.  and  X.  that  neither  party  should  interfere  with  the 
fishing  rights  enjoyed  by  the  other,  a  provision  which  seems 
to  have  been  forgotten  by  France  when,  in  April,  1779,  she 
secretly  agreed  with  Spain  that  if  she  could  drive  the  British 
from  Newfoundland  the  fisheries  should  be  shared  only  with 
Spain.' 

The  Old  Congress  on  the  Fisheries. 

The  historic  and  memorable  part  born  by  the  American 
colonists  in  securing  for  Great  Britain  the  Newfoundland 
fisheries,  added  to  their  importance  to  the  colonies  them- 
selves, naturally  led  to  a  just  appreciation  of  their  value. 

On  October  22,  1778,  Congress  adopted  a  plan  which  is 
referred  to  in  the  instructions  given  to  Franklin  **  for  re- 
ducing the  Province  of  Canada,"  and  the  ^rst  reason  given 
for  declaring  the  reduction  of  Halifax  and  Quebec  objects 
of  the  highest  imnortance,  was  that  "the  fishery  of  New- 
foundland is  justly  considered  as  the  basis  of  a  good  Ma- 
rine "  (11.  Secret  Journal  of  Congress,  114).  On  May  27, 
1779,  it  was  recorded,  on  motion  of  Mr.  Burke,  seconded  by 
Mr.  Douglas,  "  that  in  no  case  by  any  Treaty  of  Peace  the 
common  right  of  fishing  be  given  up ; "  and  on  June  24, 1779, 
they  voted,  "that  it  is  essential  to  the  welfare  of  all  the 
United  States  that  the  inhabitants  thereof,  at  the  expiration 
of  the  war,  should  continue  to  enjoy  the  free  and  undis- 
turbed exercise  of  their  common  right  to  fish  on  the  banks 
of  Newfoundland  and  the  othe/  fishing  banks  and  seas  of 
North  America"  (Do.,  p.  184). 

The  earnestness  of  Congress  in  this  view  appears  from 
a  further  resolution,  July  ist,  for  an  explanatory  note  to  the 
Minister  at  the  Court  of  Versailles,  whe.eby  such  common 
right  shall  be  more  explicitly  guaranteed.  On  July  17th, 
1779,  touching  the  treaty  with  England,  and  on  July  29,  in 


THE   FISHERIES  DISPUTE. 


25 


a  resolution  of  which  the  spirit  will  be  approved  by  our 
harried  fishermen  of  to-day,  on  motion  of  Mr.  McKean,  sec- 
onded by  Mr.  Huntington,  it  was  resolved,  that  if  after  a 
treaty  of  peace  with  Great  Britain  she  shall  molest  the  citi- 
zens or  inhabitants  of  any  of  the  United  States  in  taking 
fish  on  the  banks  and  places  described  in  the  resolutions 
passed  on  the  22d  day  of  July  instant,  such  molestation 
(being  in  the  opinion  of  Congress  a  direct  violation  and 
breach  of  the  peace)  shall  be  a  common  cause  of  the  said 
States,  and  the  force  of  the  Union  be  exerted  to  obtain  re- 
dress for  the  parties  injured. 

Elaborate  reports  on  the  common  right  of  the  States  to 
the  fisheries,  on  January  8,  and  August  16,  1782  (III. 
Secret  Journal  of  Congress,  pp.  151,  161),  show  how  thor- 
oughly the  subject  had  been  studied. 

As  regards  its  instructions  Congress,  under  the  influence 
of  M.  Gerard  and  M.  de  la  Luzerne,  the  French  Ministers  at 
Philade'phia,  took  a  lower  tone  when,  on  June  15,  1781, 
it  gave  to  its  peace  commissioners  the  humiliating  and  in- 
credible instruction,  which  Madison  denounced  as  "  a  sac- 
rifice of  the  national  dignity,"  to  undertake  nothing  in  the 
negotiations  for  peace  or  truce  without  the  knowledge  and 
concurrence  of  the  Ministers  of  the  King  of  France,  "  and 
ultimately  to  govern  yourselves  by  their  advice  and  opin- 
ion "  (X.  Diplomatic  Correspondence,  75,  j6). 

While  no  satisfactory  explanation  has  been  given  for 
the  adoption  by  Congress  of  this  instruction,  the  reasons 
for  its  being  urged  by  the  Court  of  France  have  been  re- 
cently made  quite' clear  by  the  valuable  confidential  cor- 
respondence of  the  Count  de  Vergennes  with  his  agents  at 
Madrid,  Philadelphia,  and  London,  published  in  part  by 
the  Count  de  Circourt,  and  more  largely  comprised  in  the 
invaluable  collection  of  papers  relating  to  the  peace  negoti- 
ations made  by  Mr.  B.  F.  Stevens,  and  now  awaiting  in 
the  State  Department  at  Washington  the  action  of  the 
Government. 

M.  de  Circourt's  third  volume  and  the  recent  "  Life  of 


26 


THE  FISHERIES  DISPUTE. 


Lord  Shelburne,"  by  his  grandson  Lord  Edmond  Fitzmaurice, 
a  brother  of  Lord  Lansdowne,  the  Governor-General  '  f 
Canada,  both  published  in  1876,  the  first  at  Paris  and  the 
second  in  London,  show  precisely  the  position  occupied  by 
each  of  thpse  three  powers,  Great  Britain,  France,  and 
Spain,  in  opposition  to  the  American  claims  to  the  fisheries. 

The  Opposition  of  England,  France,  and  Spain. 

England's  hostile  position  on  the  fisheries  was  defined  by 
the  announcement  of  the  Shelburne  Ministry  to  Mr.  Oswald, 
that  "  the  limit  of  Canada  would,  under  no  circumstances,  be 
made  narrower  than  under  the  Parliament  of  1763,  and  that 
the  right  of  drying  fish  on  the  shores  of  Newfoundland  could 
not  be  conceded  to  the  American  fisherman  "  (IIL  "  Life  of 
Shelburne,"  i    255). 

When  France,  by  the  Treaty  of  Madrid,  April  12,  1779, 
induced  Spain  to  join  in  the  war  against  Great  Britain,  the 
reluctance  of  Spain  to  assist  in  the  independence  of  revolted 
colonies,  whose  power  and  influence  she  hated  and  feared, 
was  overcome  by  an  agreement  on  the  part  of  France, 
with  small  regard  to  the  interests  of  the  United  States  or  to 
her  treaty  obligations  with  the  Republic,  first,  that  if  the 
British  should  be  driven  from  Newfoundland  its  fisher- 
ies were  to  be  shared  only  with  Spain  ;  and  second,  that 
Spain  should  be  left  free  to  exact,  as  the  price  of  her  alliance 
in  the  war,  a  renunciation  of  every  part  of  the  basin  of  the 
St.  Lawrence  and  the  lakes,  and  the  navigation  of  the  Mis- 
sissippi, and  of  all  the  land  between  that  river  and  the  Alle- 
ghanies  (X.  Bancroft,  190,  quoting  authorities). 

In  pursuance  of  that  agreement,  and  with  a  view  to 
facilitate  the  designs  of  Spain  against  America  to  which 
France  had  assented,  M.  de  Vergennes  gave  repeated  and 
elaborate  instructions  to  his  diplomatic  agents  in  America. 
The  very  ingenious  argument  of  his  Excellency  against  our 
right  to  the  fisheries  is  interesting  from  its  complete  con- 
trast to  the  view  held  by  our  own  Commissioners,  and  which, 


\\\   i 


THE  FISHERIES  DISPUTE. 


27 


as  the  treaty  shows,  was,  in  that  solemn  instrument,  recog- 
nized and  adopted  by  the  British  Government.  He  said  in 
a  letter  to  AT.  de  la  Luzerne,  the  French  Minister  at  Phila- 
delphia, dated  Versailles,  September  25,  1777  : 

It  is  essential  to  remark  that  the  fisheries  belong,  and  have  always 
belonged,  to  the  Crown  of  Great  Britain,  and  that  it  was  as  subjects  of 
the  Crown  the  Americans  enjoyed  them — consequently,  from  the  mo- 
ment when  they  shook  off  the  English  yoke  and  declared  thtmselves 
independent,  they  broke  the  community  which  existed  between  them 
and  the  metropolis ;  and  voluntarily  relinquished  all  the  advantages 
which  they  derived  from  that  community,  just  as  they  despoiled  Eng- 
land of  all  the  advantages  she  derived  from  their  union  with  her. 

This  is  virtually  the  same  argument  held  by  Lord 
Bathurst  in  his  correspondence  with  Mr.  John  Quincy 
Adams,  and  by  the  English  Commissioners  at  Ghent,  that 
"  when  the  Americans  by  their  separation  from  Great 
Britain  became  release*-'  from  the  duties,  they  became  ex- 
cluded also  from  the  privileges  of  British  subjects." 

It  should  therefore,  argued  the  Count  de  Vergennes,  be  well  estab- 
lished that  from  the  moment  when  the  colonies  published  their  Dec- 
laration of  Independence  they  have  ceased  to  own  a  share  in  the 
fisheries,  because  they  have  forfeited  by  their  own  act  the  qualifica- 
tion which  entitled  them  to  such  a  share  ;  that  consequently  they  can 
offer  to  the  court  of  London  neither  title  nor  actual  possession,  from 
this  coines  another  result,  viz.,  that  the  Americans  having  no  right  to 
the  fishing  we  can  give  them  no  guarantee  on  that  head  (III.  de  Cir- 
court,  pp.  276,  277). 

This  argument  conveniently  accords  with  the  suggestion 
which  closes  the  remarkable  memoir  on  the  principal  ob- 
ject of  negotiation  ^or  peace  given  by  M.  de  Circourt  (IIL, 
pp.  29,  38)  from  the  French  arcliives,  that  it  would  be  for. 
the  interest  of  England  to  have  the  French  as  companions 
at  Newfoundland  rather  than  the  Americans,  and  agrees 
with  the  strong  opinion  presented  to  Lords  Shelburne  and 
Grantham  by  M.  Reyneval,  during  his  secret  visit  to  Eng- 


28 


THE  FISHERIES  DISPUTE 


land  in  September,  1782,  against  otir  right  to  the  fisheries 
(III.  Shelburne's  Life,  p.  263). 

There  would  have  been  more  force  in  the  Count's  argu- 
ment had  he  succeeded  in  his  attempt  to  induce  the  American 
Commissioners  to  negotiate  under  the  first  commission  to 
Mr.  Oswald,  authorizing  him  to  treat  with  representatives 
of  "  the  Thirteen  Colonies  or  plantations."  The  Count  then 
argued  against  an  acknowledgment  of  our  independence  in 
advance  of  the  treaty  which  would  concede  it,  on  the 
ground  that."  it  would  ant  be  reasonable  to  expect  the  ef- 
fect before  the  cause,"  a.id  he  told  the  English  Minister 
Fitzherbert  that  the  commission  would  do.  Had  the 
American  Commissioners  adopted  that  advice  and  con- 
sented to  treat  under  that  designation,  their  consent  might 
have  given  color  to  his  suggestion,  that  any  grant  by  Great 
Britain  to  her  colonies  in  revolt,  of  the  fisheries  or  the 
boundaries,  had  be^n  given  and  accepted  as  a  concession. 

The  Count's  advice,  though  concurred  in  by  Dr.  Frank- 
lin, struck  Jay  a  -  singular,  and  the  refusal  of  Jay  to  treat 
except  on  an  equal  footing  stayed  for  some  six  weeks  the 
progress  of  the  negotiations  for  a  general  peace,  until  the 
mission  of  Vaughan,  and  the  considerations  of  which  he 
was  the  bearer,  convinced  the  British  Cabinet  and  brough' 
the  new  Commission  to  Oswald,  to  treat  with  "  The  United 
States  of  America  "  (Jay  to  Secretary  Livingston,  No- 
vember 17,  1782,  Vin.  Diplom.  Corresp.,  pp.  135,  141, 
200).  Then  the  negotiations  commenced  between  the  two 
independent  and  equal  powers,  and  this  fact  enabled  John 
Adams  to  say,  nearly  forty  years  afterward — in  a  letter  to 
William  Thomas,  dated  August  lO,  1822,  in  a  pithy  expres- 
sion which  contains  a  world  of  thought  and  of  argument, 
and  which  should  be  borne  in  mind  by  the  statesmen  of  both 
countries  in  considering  the  fishery  question  :  "  We  con- 
sidered that  treaty  as  A  DIVISION  OF  THE  EMPIRE.  Our 
independence,  our  rights  to  territory  and  to  the  fisheries  as 
practised  before  the  Revolution,  were  no  more  a  grant  from 
Britviin  to  us  than  the  treaty  was  a  grant  from  us  of  Canada, 


I  i 


^ 


THE   FISHERIES  DISPUTE. 


29 


Nova  Scotia,  England,  Scotland,  and  Ireland  to  the  Britons. 
The  treaty  was  nothing  more  than  mutual  acknowledg- 
ment of  antecedent  rights''  (August  lO,  1882,  X.  Adams' 
Works,  404). 

It  was  fitly  called  by  an  English  judge  "  A  Treaty  of 
Separation." 

The  Fisheries  Clause  a  Condition  of  the  Peace. 

Vaugkan's  Mission  to  Shelburne. 

The  sketches  afforded  by  the  official  correspondence  of 
our  Commissioners  for  Peace,  and  by  the  diary  of  Mr.  Ad- 
ams, and  the  new  and  most  important  light  thrown  upon 
the  whole  subject  by  the  confidential  documents  from  the 
French  Archives,  and  by  the  interesting  disclosures  in  the 
Life  of  Lord  Shelburne  all  confirm  this  view. 

To  the  latter  work  we  are  indebted  for  the  most  exact 
information  we  have  yet  had  of  the  attempt  of  M.  de  Ray- 
neval  in  his  secret  mission  to  engage  the  support  of  Great 
Britain  to  the  French  and  Spanish  scheme,  in  which  those 
courts  united  at  the  date  of  their  treaty,  April,  1779,  co  de- 
prive the  United  States  of  the  fisheries,  and  so  to  cripple 
her  boundaries  and  resources  as  to  confine  her  to  a  narrow 
strip  along  the  Atlantic,  as  shown  in  the  map  "  of  North 
America,  showing  the  Boundaries  of  the  United  States, 
Canada,  and  the  Spanish  Possessions,  according  to  the  pro 
posals  of  the  Court  of  France,  in  1882  "  (III.  Shelburne's 
Life,  p.  170).  Their  limits,  according  to  the  secret  memoir 
given  by  de  Circourt  (III.,  pp.  34,  38),  were  to  be  detailed 
and  "  circumscribed  with  the  greatest  exactness,  and  all  the 
belligerent  powers  (especially  England,  France,  and  Spain) 
must  bind  themselves  to  prevent  any  transgression  of  them." 

To  Lord  Edmond  Fitzmaurice,  the  grandson  and  biog- 
rapher of  Lord  Shelburne,  we  are  also  indebted  for  the  first 
account  of  the  full  effect  of  the  secret  mission  of  Mr.  B-n- 
jamin  Vaughan,  who  had  been  promptly  despatched  by  ay 
to  counteract  the  unfriendly  designs  of  the  French  envoy, 


I 


30 


THE  FISHERIES  DISPUTE. 


and  apart  from  its  general  interest  as  showing  the  complete 
success  of  Vaughan's  mission  in  deciding  the  policy  of  the 
British  cabinet  in  favor  of  the  United  States,  and  in  over- 
throwing kt  a  blow  the  scheme  for  the  permanent  enfeeble- 
ment  of  the  new  Republic,  in  which  France  and  Spain  had 
been  for  years  united,  and  to  accomplish  which  their  ablest 
diplomatists  were  engaged  in  Madrid  and  Paris,  at  Phila- 
delphia and  London,  it  has  a  direct  bearing  on  the  fisheries 
question  of  to-day,  in  showing  that  the  British  cabinet  then 
adopted  their  new  policy  of  conciliation  with  a  complete 
advisement  that  without  a  recognition  of  our  right  to  the 
fisheries  no  peace  was  possible.  The  "  Consider  ''^ns"  sub- 
mitted by  Mr.  Vaughan  to  Lord  Shelburne  (VIIL  Diplomatic 
Correspondence,  pp.  165,  168)  as  worthy  of  attention  if 
England  expected  other  advantages  from  peace  than  a  mere 
suspension  of  hostilities,  if  she  looked  forward  to  cordiality, 
confidence,  and  commerce,  after  touching  upon  the  impor- 
tance of  treating  with  us  on  an  equal  footing,  notwithstand- 
ing the  policy  of  France  to  postpone  the  acknowledgment 
of  our  independence  to  the  conclusion  of  a  general  peace, 
discussed  with  perfect  frankness  the  true  policy  of  Great 
Britain  as  regards  the  fisheries  and  the  boundaries,  and  said 
in  conclusion,  "  that  it.certainly  could  not  be  wise  in  Britain, 
whatever  it  might  be  in  other  nations,  thus  to  sow  the  seeds 
of  future  war  in  the  very  treaty  of  peace,  or  to  lay  in  it  the 
foundation  of  such  distrust  and  jealousies  as  on  the  one 
hand  would  forever  prevent  confidence  and  real  friendship, 
and  on  the  other  naturally  lead  us  to  strengthen  our  security 
by  intimate  and  permanent  alliances  with  other  nations." 

In  regard  to  the  fisheries  the  "Considerations''  said 
"that  it  would  not  be  wise  in  Great  Britain  to  think  of 
dividing  the  fishery  with  France  and  excluding  us,  because 
we  could  not  make  peace  at  such  an  expense,  and  because 
such  an  attempt  would  irritate  America  still  more  ;  would 
perpetuate  her. resentment,  and  induce  her  to  use  every, 
possible  means  of  retaliation,  and  by  imposing  the  most 
rigid  restraints  upon  a  commerce  with  Great  Britain." 


THE  FISHERIES  DISPUTE. 


3» 


implete 

f  of  the 

n  over- 

ifeeble- 

lain  had 

ir  ablest 

t  Phila- 

ftsheries 

net  then 

:omplete 

it  to  the 

ns  "  sub- 

iplomatic 

ention   if 

in  a  mere 

;ordiality,    ' 

he  impor- 

vithstand- 

rledgment 

ral  peace, 
of  Great 
,  and  said 
n  Britain, 
the  seeds 
y  in  it  the 
1   the  one 
iendship, 
r  security 
lations." 
Ions"  said 
think  of 
|s,  because 
d  because 
Ire  ;  would 
use  every, 
the  most 
lam. 


The  effect  of  Vaughan's  arrival  with  these  considerations 
"  almost  simultaneously  with  Rayneval  "  was  decisive.  The 
Cabinet  at  once  decided  to  accept  the  American  proposition 
as  to  the  commission  of  Oswald,  and  to  adopt  the  American 
policy  as  opposed  to  that  of  France  and  Spain.  The  new 
commission  was  made  out  at  once  and  despatched  by 
Vaughan,  and  Lord  Shelburne  wrote  to  Oswald,  September 
23,  1782 — "  Having  said  and  done  everything  which  has 
been  desired,  there  is  nothing  for  me  to  trouble  you  with, 
except  to  add  that  we  have  put  the  greatest  confidence,  I 
believe,  ever  placed  in  man  in  the  American  Commission- 
ers "  (III.  Shelburne,  pp.  267,  268).« 

The  Negotiation  at  Paris.— Mr.  Adams'  Diary. 

An  extract  from  Mr.  Adams'  diary,  showing  what  was 
said  and  agreed  to  on  both  sides  about  the  fisheries  the  day 
before  the  signing  of  the  Provisional  Articles,  November 
29,  1782,  throws  light  upon  the  intention  of  both  parties, 
and  conclusively  answers  the  attempt  of  the  British  Com- 
missioners, at  Ghent  and  London,  to  show  that  the  Fisheries 
Article  had  been  annulled  by  the  War  of  1812  : 

29th,  Friday. — Met  Mr.  Fitzherbert,  Mr.  Oswald,  Mr.  Franklin, 
Mr.  Jay,  Mr.  Laurens,  and  Mr.  Strachey,  at  Mr.  Jay's,  Hotel  if  Orleans , 
and  spent  the  whole  day  in  discussion  about  the  fisheries  and  the 
Tories.  I  proposed  a  new  article  concerning  the  fishery.  It  was  dis- 
cussed and  turned  in  every  light,  and  multitudes  of  amendments  pro- 
posed on  each  side  ;  and  at  last  the  article  drawn  as  it  was  finally 
agreed  to.  , 

The  other  English  gentlemen  being  withdrawn  on  some  occasion, 
I  asked  Mr.  Oswald  if  he  could  consent  to  leave  out  the  limitation  of 
three  leagues  from  all  their  shores  and  the  fifteen  from  those  of 
Louisburg.  He  said  in  his  own  opinion  he  was  for  it ;  but  his  instruc- 
tions were  such  t^at  he  could  not  do  it.  I  perceived  by  this  and  by 
several  incidents  and  little  circumstances  before,  which  I  'id  re* 
marked  to  my  colleagues,  who  are  much  of  the  same  opinion,  that  Mr. 
Oswald  had  an  instruction  not  to  settle  the  articles  of  ihe  fisheries  and 
refugees  without  the  concurrence  of  Mr.  Fitzherbert  and  Mr.  Strachey. 


11 

If  I 


(1       i     ': 

1         '      ' 

,1 

1 

33 


THE  FISHERIES  DISPUTE. 


Upon  the  return  of  the  other  gentlemen,  Mr.  Strachey  proposed  to 
leave  out  the  word  "  right "  of  fishing  and  make  it  "  liberty."  Mr. 
Fitzhcrbert  said  that  the  word  right  was  an  obnoxious  expression. 
Upon  this  I  rose  up  and  said  ;  "  Gentlemen,  is  tl»ere  or  can  there  be  a 
clearer  right  ?  In  former  treaties— that  of  Utrecht  and  that  of  Paris 
— France  and  England  have  claimed  the  right  and  used  the  word. 
When  God  Almighty  made  the  banks  of  Newfoundland,  at  three  hun- 
dred leagues  distance  from  the  people  of  America,  and  at  six  hundred 
leagues  distance  from  those  of  France  and  England,  did  He  not  give  as 
good  a  right  to  the  former  as  to  the  latter?  If  Heaven,  as  the  Creator, 
gave  a  right,  it  is  ours  at  least  as  much  as  yours.  If  occupat'on  and 
possession  give  a  right,  we  have  it  as  clearly  as  you.  If  war  and 
blood  and  treasure  give  a  right,  ours  is  as  good  as  yours.  We  have 
been  continuously  fighting  in  Canada,  Cape  Breton,  and  Nova  Scotia 
for  the  defence  of  this  fishery.  And  have  expended  beyond  all  propor- 
tion more  than  you ;  if  the  right  cannot  then  be  denied,  why  should 
it  not  be  acknowledged  and  put  out  of  dispute.  Why  should  we  leave 
room  for  illiterate  fishermen  *o  vrangle  and  chicane  ? "  Mr.  Fitzherbert 
said  :  "  The  argument  is  in  your  favor.  I  must  confess  your  reasons 
appear  to  be  good,  but  Mr.  Oswald's  instructions  were  such  that  he  did 
not  see  how  he  could  agree  with  us.  .  .  ."  After  hearing  all  this, 
Mr.  Fitzherbert,  Mr.  Oswald,  and  Mr.  Strachey  retired  for  some  time  ; 
and  returning,  Mr.  Fitzherbert  said  that,  upon  consulting  together  and 
weighing  everything  as  maturely  as  possible,  Mr.  Strachey  and  himself 
had  determined  to'a^Vise  Mr.  Oswald  to  strike  with  us  according  to 
the  terms  we  had  proposed  as  our  ultimatum  respecting  the  fishery 
and  the  loyalists.  Accordingly,  we  all  sat  down  and  read  over  the 
whole  treaty  and  corrected  it,  and  agreed  to  meet  to-morrow  at  Mr. 
Oswald's  house  to  sign  and  seal  the  treaties,  which  the  secretaries 
would  copy  fair  in  the  meantime. 

I  forgot  to  mention  that  when  we  yvere  upon  the  fishery,  and  Mr. 
Strachey  and  Mr.  Fitzherbert  were  urging  us  to  leave  out  the  word 
"  right"  and  substitute  "  liberty,"  I  told  them  at  last,  in  answer  to 
their  proposal,  to  agree  upon  all  other  articles  and  leave  that  of  the 
fishery  to  be  adjusted  at  the  definitive  treaty.  I  never  could  put  my 
hands  to  any  article  without  satisfaction  about  the  fishery  ;  that  Con- 
gress had,  three  or  four  years  ago,  when  they  did  me  the  honor  to  give 
me  a  commission  to  make  a  Treaty  of  Commerce  with  Great  Britain, 
given  me  a  positive  instruction  not  to  make  any  such  treaty  without 
an  article  in  the  Treaty  of  Peace  acknowledging  a  right  to  the  fishery ; 
that  I  was  happy  that  Mr.  Laurens  was  now  present,  who,  I  believe, 
was  in  Congress  at  the  time  and  must  remember  it.  Mr.  Laurens  upon 
this  saic\  with  great  firmness,  that  he  was  in  the  same  case,  and  could 


THE  FISHERI 


33 


osed  to 
."    Mr. 
resston. 
ere  be  a 
of  Paris 
le  word, 
ree  hun- 
hundred 
)t  give  as 

Creator, 
it' on  and 

war  and 
We  have 
»va  Scotia 
U  propor- 
rhy  should 
d  we  leave 
Mtzherbert 
Lir  reasons 
that  he  did 
ng  all  this, 
;ome  time  ; 
)gcther  and 
ind  himself 
ccording  to 

the  fishery 
id  over  the 
rrow  at  Mr. 

secretaries 

ry,  "and  Mr. 
it  the  word 
n  answer  to 
i  that  of  the 
ould  put  my 
f  ;  that  Con- 
lonor  to  give 
reat  Britain, 
reaty  without 
>  the  fishery ; 
lo,  I  believe, 
.aurens  upon 
se,  and  could 


never  give  his  voice  for  any  articles  without  this.  Mr.  Jay  spoke  up 
and  said  it  could  not  be  a  peace,  it  would  be  only  an  insidious  truce 
without  it  (III.  John  Adams'  Works,  333,  335).  , 

To  this  may  be  properly  added  an  explanatory  state- 
ment by  Mr.  Adams  in  regard  to  tne  subsequent  substitu- 
tion of  the  word  liberty  for  right  in  parts  of  the  article. 
He  wrote  to  Mr.  Thomas : 

That  third  article  was  demanded  as  an  ulii/natum,  and  it  was  de- 
clared that  no  Treaty  of  Peace  should  ever  be  made  without  it  ;  and 
when  the  British  Ministers  found  that  peace  could  not  be  made  with- 
out that  Article,  they  consented  ;  for  Britain  wanted  peace,  if  possible, 
more  than  we  did. 

We  demanded  it  as  a  right,  and  we  demanded  an  explicit  acknowl- 
edgment of  that  as  an  indispensable  condition  of  peace  ;  and  the 
word  right  was  in  the  article  as  agreed  to  by  the  British  Ministers,  but 
they  afterward  requested  that  the  word  liberty  might  be  substituted 
instead  of  right.  They  said  it  amounted  to  the  same  thing,  for  liberty 
was  right,  and  privilege  was  right,  but  the  word  rig/it  might  be  more 
unpleasant  to  the  people  of  England  than  liberty;  and  we  did  not  think 
it  necessary  to  contend  for  a  word  (X.  Adams'  Works,  404). 

The  American  Commissioners,  while  yielding  to  the  re- 
quest of  the  British  Commissioners,  may  have  thought  that 
while  the  word  liberty  in  the  context  was  equivalent  to 
right,  there  was  a  certain  fitness  in  the  proposed  substitu- 
tion, on  the  ground  that  while  right  was  used  in  reference 
to  the  sea  fishery,  the  word  liberty  might  seem  more  ap- 
plicable to  the  fisheries  on  the  coast  retained  y  Britain. 
This  idea  was  conveyed  by  Mr.  John  Quincy  Adams,,when 
he  said  : 

At  the  same  moment  and  by  the  same  act  with  which  the  United 
States  acknowledges  those  coasts  and  shores  as  being  under  a  foreign 
jurisdiction.  Great  Britain  recognized  the  liberty  of  the  people  of  the 
United  States  to  use  them  for  purposes  connected  with  the  fisheries. 

John  Adams'  statement  and  argument  on  this  point  is 
confirmed  by  the  fact  that  the  right  of  fishery,  as  discussed 
in  Congress  and  demanded  by  the  American  Commissioners 
3 


34 


THE  FISHERIES  DISPUTE. 


I 


as  a  condition  of  peace,  was  not  simply  the  right  of  taking 
fish  on  the  banks  of  Newfoundland,  the  Gulf  of  St.  Law- 
rence, and  other  places  in  the  sea,  but  the  full  fishery  right, 
liberty,  or  privilege — by  whatever  name  it  might  be  called — 
given  by  the  article,  and  essential  to  make  their  olden  en- 
joyment of  the  fisheries  continuous  and  complete. 

The  Stevens'  collection  of  papers  bearing  on  the  Peace 
Negotiations,  from  the  Archives  of  France  and  the  State 
Paper  Office  of  London,  which,  by  the  courtesy  of  Mr. 
Stevens  and  Mr.  Dwight,  I  had  the  opportunity  of  partially 
examining  at  the  State  Department,  contains  letters  from 
the  English  Commissioners  which  fully  confirm  Mr. 
Adams'  statement  that  M^  entire  article  was  a  condition  of 
peace  ;  and  they  show  that  the  English  Commissioners  were 
doubtful  of  the  extent  of  their  instructions,  and  were  not 
quite  sure  how  the  treaty,  which  in  fact  brought  about  the 
downfall  of  the  ministry,  would  be  received  in  England. 

Mr.  Strachey  to  Mr.  Thomas  Town'send,  Paris,  Novem- 
ber 20th.  Eleven  at  night.  "  The  article  of  the  fishery  has 
been  particularly  difficult  to  settle  as  we  thought  the  in- 
structions were  rather  limited.  It  is,  however,  beyond  a 
doubt  that  there  could  have  heen.no  treaty  at  all  if  zve  had 
not  aaopted  the  article  as  it  notv  stands." 

Mr.  Oswald  to  Mr.  Thomas  Townsend,  Paris,  Novem- 
ber 30,  1782.  "  If  we  had  not  given  way  in  the  article  of 
the  fishery  we  should  have  had  no  treaty  at  all,  Mr.  Adams 
having  declared  that  he  would  never  put  his  hand  to  any 
treaty  if  the  restraints  regarding  the  three  leagues  and  fif- 
teen leagues  were  not  dispensed  with,  as  well  as  that  deny- 
ing his  countrymen  the  privilege  of  drying  fish  on  the  un- 
settled parts  of  Newfoundland." 

»  As  the  Americans  made  the  entire  article  a  condition  of 
peace,  and  the  English  Commissioners  assented  to  it  with 
that  understanding,  the  conclusion  seems  reasonable,  if  not 
irresistible,  that  as  the  article  was  treated  as  one  by  them, 
it  should  have  been  treated  as  one  by  all  who  had  to  do 
with  it,  as  determining  the  relative  rights  and  privileges  of 


1^ 


THE    FISHERIES  DISPUTE. 


35 


the  two  powers  in  the  fisheries,  in  a  division  of  sovereignty 
which  was  intended  to  be  not  transient  but  permanent. 

The  essential  facts  of  the  negotiation  on  this  point  men- 
tioned by  Mr.  Adams,  and  their  striking  confirmation  by 
the  letters  of  Mr.  Strachey  and  Mr.  Oswald,  in  the  collection 
of  Mr.  Stevens,  were  probably  unknown  to  the  commission- 
ers at  Ghent ;  and  it  is  interesting  to  see  how  complete  an 
answer  they  furnish  to  the  very  ingenious  and  plausible  ar- 
guments of  Lord  Bathurst  in  his  correspondence  with  Mr. 
John  Quincy  Adams  (October  30,  1815)— arguments  that 
were  repeated  three  years  later  by  the  English  Commis- 
sioners at  London  (Dana's  Wheaton). 

The  rtghts  acknowledged  by  the  Treaty  of  1783  were  not  only  dis- 
tinguishable from  the  liberties  conceded  by  the  same  Treaty  in  the 
foundation  on  which  they  stand,  but  they  are  carefully  distinguished  in 
the  wording  of  the  Ti  eaty. 

...  In  the  Third  Article  Great  Britain  acknowledged  the  right 
of  the  United  States  to  take  fish  on  the  banks  of  Newfoundland  and 
other  places  from  which  Great  Britain  had  no  right  to  exclude  any  in- 
dividual nation,  but  they  were  to  have  the  liberty  to  cure  and  dry  them 
in  certain  unsettled  places  within  the  British  territory.  If  the  liber- 
ties thus  granted  were  to  be  as  perpetual  and  indefinite  as  the  right 
previously  recognized,  it  was  difficult  to  conceive  a  variation  of  language 
so  adapted  to  produce  a  different  impression,  and  above  all,  that  they 
should  have  admitted  so  strange  a  restriction  of  a  perpetual  and  in- 
definite right  as  those  with  which  ^he  Article  concluded,  which  left  a 
right  so  practical  and  so  beneficial  as  this  was  admitted  to  be,  depend- 
ent on  the  will  of  British  subjects,  proprietors,  or  possessors  of  the  soil 
to  prohibit  its  exercise  altogether. 

It  was  therefore  surely  obvious  that  the  word  right  was,  through- 
out the  Treaty,  used  as  applicable  to  what  the  United  States  were  to 
enjoy  in  virtue  of  a  recognized  independence  j  and  the  word  liberty  to 
what  they  were  to  enjoy  as  concessions  strictly  dependent  on  the  Treaty 
itself  (quoted  in  Dana's  Wheaton,  sec.  272). 

The  point  insisted  on  by  Lord  Bathurst,  that  th^  right  of 
the  United  States,  acknowledged  by  England,  to  take  fish 
on  the  Banks  and  other  places  from  which  Great  Britain 
could  not  exclude  any  nation,  shows  that  that  clause  was 
not  the  gist  or  essence  of  the  Third  Article,  which  the 


m^mmmillKymmmnmm 


Hi 


v\  1 


I    r. 


I 


30 


THE  FISHERIES  DISPUTE. 


Americans  demanded  as  the  condition  of  peace,  for  con- 
senting to  which  the  English  Commissioners  justified  them- 
selves by  the  declaration  that  there  could  be  no  treaty  with- 
out ju  The  change  of  the  word  right  to  liberty,  at  the 
urgent  request  of  the  English  Commissioners,  doubtful  of 
their  authority  and  learful  as  to  the  result,  on  the  ground 
that  liberty  was  right,  and  that  the  change  was  therefore 
immaterial,  but  that  the  word  liberty  might  be  less  unpleas- 
ant to  the  people  of^England,  can  be  easily  understood 
when  we  read  their  letters.  The  American  Commissioners 
had  neither  doubt  nor  fear  in  regard  to  their  share  in  the 
treaty.  They  knew  that  they  had  successfully  maintained 
the  rights,  the  boundaries,  and  the  resources  of  the  Repub- 
lic against  the  most  astute  diplomatists  of  Europe,  and  had 
laid  the  foundation  of  a  lastinr;  peace  which,  as  Hamilton 
wrote,  surpassed,  in  the  excellence  of  its  terms,  the  expecta- 
tions of  the  most  sanguine.  ^ 

'•  A  few  hours  ago,"  wrote  Oswald  to  Shelburne  (No- 
vember 29,  1782),  "we  thought  it  impossible  that  any  treaty 
could  be  made,"  "If,"  v;rpte  Strachey  to  Nepean,  "this 
is  not  as  good  a  peace  as  was  expected,  I  am  confident  't  is 
the  best  that  could  have  been  made.  N.ow,  are  we  to  be 
hanged  or  applauded  for  thus  rescuing  England  from  the 
American  war  ?  "  (III.  Shelburne's  Life,  by  Lord  Edmund 
Fitzmaurice,  pp.   302,  303). 

That  the  English  Commissioners  at  Paris,  Mr.  Oswald, 
Mr.  Strachey,  and  Mr.  Fitzherbert,  afterward  Lord  Gt. 
Helens,  to  whose  great  ability  and  distinguished  services  in 
the  negotiation  the  State-paper  Office  affords  ample  t^-ibutes, 
were  entirely  correct  in  contending  that  the  word  liberty 
might  be  substituted  for  right,  for  the  reason  that  it  would 
amount  to  the  same  thing,  was  significantly  shown  in  the 
Parliamentary  debates  on  the  Treaty  by  the  ablest  publi- 
cists of  England,  and  it  is  interesting  to  mark  the  argument 
that,  what  we  had  enjoyed  only  as  a  privilege  as  Colonists, 
had  become  an  unlimited  right  by  the  Treaty. 


THE  FISHERIES  DISPUTE. 


57 


con- 
:hem- 
with- 
it  the 
ful  of 
round 
refore 
tpleas- 
rstood 
iioners 
in  the 
itained . 
iepub- 
nd  had 
imilton 
xpecta- 

[le  (No- 
y  treaty 
1,  "this 
ent  't  is 
e  to  be 
om  the 
idmund 

Oswald, 
ord   St. 
rvices  in 
tnbutes, 
a  liberty 
it  would 
n  in  the 
St  publi- 
rgument 
Colonists, 


In  the  House  of  Lords.  Lord  Loughboro  said : 


The  fishery  on  the  shores  retained  by  Britain  is  in  the  next  Article 
«tf/  ceded,  but  recognized  as  A  right  inherent  in  the  Americans, 
which,  though  no  longer  British  subjects,  they  are  to  continue  to  enjoy 
unmolested. 

Here  the  liberty  of  fishing  which  Lord  Bathurst  and 
Lord  Gambier  sought  to  show  was  a  liberty  conceded,  not 
a  right  acknowledged,  was  pronounced  by  the  Great  Chan- 
cellor to  be  "  «<?/  ceded,  but  recognized  as  a  right  in- 
herent in  the  Americans,"  and  to  be  enjoyed  by  them  un- 
molested. 

The  Treaty  of  Ghent. 

No  change  in  the  matter  of  the  fisheries  was  made  by 
the  Treaty  of  Ghent,  which  was  signed  on  December  24, 
r8i4,  by  Lord  Gambier,  Henry  Goulburne,  and  Dr.  Will- 
iam Adams,  on  the  part  of  Great  Britain  ;  and  by  John 
Quincy  Adams,  J  A.  Bayard,  Jonathan  Russell,  and  Albert 
Gallatin,  on  the  part  of  the  United  States. 

Mr.  Gallatin*wrote  to  the  Secretary  of  State,  with  the 
Treaty  :  "If  according  to  the  construction  of  the  Treaty  of 
'^1^'h>  which  we  assumed,  the  right  was  not  abrogated  by  the 
war,  it  remains  entire,  since  we  most  explicitly  refused  to 
renounce  it  either  directly  or  indirectly."  Mr.  Adams  said 
of  the  English  Commissioners  :  "  Their  efforts  to  obtain  our 
acquiescence  in  their  pretensions  that  the  fishing  liberties 
had  been  forfeited  by  the  war  were  unwearied.  They  pre- 
sented it  to  us  in  every  form  that  ingenuity  could  desire.  It 
was  the  first  stumbling-block-  and  the  last  obstacle  to  the 
conclusion  of  the  Treaty "  (quoted  in  Sabine's  Report  on 
the  Principal  Fisheries  of  the  American  Seas,  p.  161. 
Washington,  1853). 

The  British  government  revived  the  pretence  after  the 
conclusion  of  the  Treaty,  and  the  Canadian  government 
presently  began  to  warn  and  harass  our  fishermen,  and 
some  fishing-vessels  were  captured. 


r^ 


38 


THE  FISHERIES  DISPUTE. 


On  March  3,  1815,  John  Adams  wrote  a  letter  of  singu- 
lar vigor  to  William  Cranch  from  Quincy.     He  says  : 

Our  fisheries  have  not  been  abandoned.  They  cannot  be  aban- 
doned. They  shall  not  be  abandoned.  We  hold  them  by  no  grant, 
gift,  bargain,  sale,  or  last  will  r.nd  testament,  nor  by  hereditary  descent 
from  Great  Britain.  We  hold  them  in  truth  not  as  kings  and  priests 
claim  their  rights  and  power,  by  hypocrisy  and  craft,  but  from  God 
and  our  own  swords.  .  .  .  We  have  all  the  rights  and  liberties  of 
Englishmen  in  the  fisheries  in  as  full  and  ample  a  manner  as  we  had 
before  the  Revolution  ;  we  have  never  forfeited,  surrendered,  alienated 
or  lost  any  one  punctilio  of  those  rights  and  liberties ;  on  the  contrary, 
we  compellied  the  British  nation  to  acknowledge  them  in  the  most  sol- 
emn manner  in  the  Treaty  of  Peace  of  1783. 

Mr.  Adams  then  insisted  with  his  sturdy  common- 
sense  that  we  had  a  stronger,  clearer,  and  more  perfect 
right  than  the  Britons  or  any  other  nation  of  Europe  or 
on  the  globe,  for  they  were  all  indebted  to  us  and  our 
ancestors  for  all  these  fisheries.  "  We  discovered  them,  we 
explored  them,  we  discovered  and  settled  the  countries 
round  about  them  at  our  own  expense,  labor,  risk,  and  in- 
dustry, without  assistance  from  Britain.  We  have  pos- 
sessed, occupied,  exercised  and  practised  them  from  the 
beginning.     ...  v      ' 

"  If  conquest  can  confer  any  right,  our  right  is  at  least 
equal  and  common  with  Englishmen  in  any  part  of  the 
world.  Indeed,  it  is  incomparably  superior,  for  we  con- 
quered all  the  countries  about  the  fisheries  ;  we  conquered 
Cape  Breton,  Nova  Scotia,  and  dispossessed  the  French, 
both  hostile  and  neutral." 

In  conclusion,  Mr.  Adams  declared  that  the  article  in  the 
Treaty  of  1783  was  still  in  force,  and  added,  "  I  say  it  is  an 
acknowledgment  not  only  of  an  antecedent  right,  it  is  of 
eternal  obligation"  (X.  Adams'  Works,  1 31-133). 

According  to  Mr.  Rush  the  difference  of  opinion  in  re« 
gard  to  the  fisheries  had  in  1818  risen  to  a  considerable 
height,  and  the  United  States  wholly  dissented  from  the 
doctrine  advanced  by  the  British  Commissioners,  that  the 


till  I 


THE  FISHERIES  DISPUTE. 


39 


Treaty  of  1783,  not  being  re-enacted  or  confirmed  by  the 
Treaty  of  Ghent,  was  annulled  by  the  War  of  18 12.  They 
insisted  that  the  treaty,  after  a  seven  years*  contest,  made 
two  empires  out  of  one  ;  that  the  entire  instrument  implied 
permanence — the  use  of  the  word  right  in  one  place  and 
liberty  in  another  could  make  no  difference  ;  that  a  right 
of  unlimited  duration  secured  by  so  solemn  a  deed  was  as 
much  a  right  as  if  stipulated  by  any  other  term.  Liberty 
might  have  seemed  "a  more  appropriate  term  where  an  en- 
joyment was  guaranteed  to  one  party  of  a  thing  adjoinmg 
territory  allotted  to  the  other,  but  it  took  nothing  from  the 
permanency  of  the  allotment.  In  point  of  principle  the 
United  States  was  pre-eminently  entitled  to  all  the  fisheries, 
and  the  restriction  at  the  close  of  the  article  stamped  per- 
manence upon  it.  The  Treaty  of  1783  was  altogether 
unlike  common  treaties.  It  contemplated  a  permanent  di- 
vision of  coequal  rights,  not  a  transient  grant  of  mere  priv- 
ileges ;  the  acknowledgment  of  independence,  the  estab- 
lishment of  boundaries,  and  the  guarantee  of  the  fisheries 
each  rested  upon  the  same  illimitable  basis.  According 
to  Mr.  Rush  neither  side  yielded  its  conviction  to  the  rea- 
soning of  the  other,  and  this  being  exhausted,  there  was  no 
resource  left  with  nations  disposed  to  peace  but  a  compro- 
mise, and  the  result  was  the  first  article  of  the  Treaty  of 
181^,  under  which  have  arisen  the  troubles  which  we  have 
made  such  fruitless  efforts  to  escape. 


The  Fisheries  Convention  of  18 18. 

Whereas^  Differences  have  arisen  respec'ng  the  liberty  claimed 
by  the  United  States  for  the  inhabitants  thereof  to  take,  dry,  and  cure 
fish  on  certain  coastsj  bays,  harbors,  and  creeks  of  His  Britannic  Maj- 
esty's dominions  in  America,  it  is  agreed  between  the  high  contracting 
parties  that 

"  Article  I. — The  inhabitants  of  the  United  States  shall  have 
forever,  in  common  with  the  subjects  of  His  Britannic  Majesty,  the 
liberty  to  take  fish  of  every  kind  on  that  part  of  the  southern  coast  of 
Newfoundland  which  extends  from  Cape  Ray  to  the  Rameau  Islands, 


40 


THE  FISHERIES  DISPUTE, 


on  the  western  and  southern  coasts  of  Newfoundland  from  the  said 
Cape  Ray  to  the  Quisson  Islands,  on  the  shores  of  the  Magdalen  Isl- 
ands, and  also  on  the  coasts,  bays,  harbors,  and  creeks  from  Mount 
Joly  on  the  southern  coast  of  Labrador,  to  and  through  the  straits  of 
Belle  Isle,  and  thence  northwardly  indefinitely  along  the  coast,  without 
prejudice,  however,  to  any  of  the  exclusive  rights  of  the  Hudson  Bay 
Company  ;  and  that  the  American  fishermen  shall  have  liberty  forever 
to  dry  and  cure  fish  in  any  of  the  unsettled  bays,  harbors,  and  creeks 
of  the  southern  part  of  the  o»ast  of  New'foundland,  above  described, 
and  of  the  coast  of  Labrador  ;  but  so  soon  as  the  same,  or  any  portion 
thereof,  shall  be  settled,  it  shall  not  be  lawful  for  the  said  fishermen 
to  dry  or  cure  fish  at  such  portion  so  settled  without  previous  agree- 
ment for  such  purpose  with  the  inhabitants,  proprietors,  qr  possessors 
of  the  ground.  And  the  United  States  hereby  renounce  forever  any 
liberty  heretofore  enjoyed  or  claimed  by  the  inhabitants  thereof  to 
take,  dry,  or  cure  fish  on  or  within  three  marine  miles  of  any  of  the 
coasts,  bays,  creeks,  or  harbors  of  His  Britannic  Majesty's  dominions 
in  America  not  included  within  the  above-mentioned  limits  :  pro- 
VIDKD,  HOWEVER,  that  the  American  fishermen  shall  be  admitted  to 
enter  such  bays  or  harbors  for  the  purpose  of  shelter  and  of  repairing 
damages  therein,  of  purchasing  wood,  and  of  obtaining  water,  and  for 
no  other  purpose  whatever.  But  they  shall  be  under  such  restrictions 
as  may  be  necessary  to  prevent  their  taking,  drying,  or  curing  fish 
therein,  or  in  any  other  manner  whatever  abusing  the  privileges  hereby 
reserved  to  them." 

The  complications  and  misunderstandings  that  arose 
under  this  jonvention  threatened  the  peace  of  the  two  na- 
tions, and  by  the  Treaty-  of  1854,  made  by  Mr.  Marcy  and 
Lord  Elgin,  the  first  article  of  which  recited  that  the  liberty 
it  granted  was  **in  addition  to  the  liberty  secured  to  the 
United  States  fishermen  by  the  convention  of  October  20, 
1818,"  we  temp.orarily  recovered  the  enjoyment  of  some  of 
our  ancient  rights  recognized  and  continued  by  the  Treaty 
of  1783  ;  the  consideration  given  on  our  part  being  a  reci- 
procity of  fishing  hberty,  and  of  trade  in  certain  articles 
supposed  to  be  greatly  to  the  benefit  of  Canada.  This 
treaty  was  terminated  on  our  notice  in  1866,  throwing  us 
back  as  Great  Britain  contended,  and  as  we  have  admitted, 
on  the  Treaty  of  1818.  Then  came  the  Treaty  of  187 1,  giv- 
ing us  the  right  to  fish  fn-shore  under  certain  limitations, 


THE  FISHERIES  DISPUTE. 


41 


)ns, 


and  this,  after  the  rejc  ction  by  the  Senate  on  February  2, 
1875,  of  another  reciprocjt^"  *-zz^.j ,  was  terminated  by  our 
act  on  July  i,  1885,  bringing  again  into  operation  the  fish- 
eries article  of  1818. 

Last  came  the  Treaty  of  Washington,  with  its  mutual 
grants  in  regard  to  the  fisheries  and  trade,  and  the  memora- 
ble Article  XXII.,  commencing,  "  Inasmuch  as  it  is  asserted 
by  the  government  of  Her  Britannic  Majesty  that  the 
privileges  accorded  to  the  citizens  of  the  United  States,  un- 
der Article  XVIII.  of  this  treaty,  are  of  greater  value  than 
those  accorded  by  Articles  XIX.  and  XXI.  of  this  treaty  to 
the  subjects  of  Her  Britannic  Majesty,  and  this  assertion  is 
not  admitted  by  the  Government  of  the  United  States,  it 
is  further  agreed,"  etc.,  and  then  followed  the  provision  for 
commissioners,  not  to  ascertain  whether  there  was  in  fact 
an  inequality  of  advantage,  and  if  so  which  side  had  re- 
ceived the  largest  advantage,  and  to  what  amount,  and 
which  should  pay  the  other  for  the  diflference,  but  to  de- 
termine the  amount  of  any  compensation  which  in  their 
opinion  ought  to  be  paid  by  the  Government  of  the  United 
States  to  the  government  of  Her  Britannic  Majesty  in  re- 
turn for  the  privileges  accorded  to  the  citizens  of  the  United 
States  under  Article  XVIII. 

The  advantage  gained  by  Great  Britain  in  this  form  of 
submission  to  the  commissioners  was  emphasized  by  the 
joint  instruction  to  the  Count  Beust,  by  whom,  as  the  Aus- 
trian Ambassador  at  London,  the  umpire  was  to  be  selected, 
that  the  appointment  of  the  Minister  of  Belgium  at  Wash- 
ington would  be  acceptable,  not  simply  to  the  government 
of  Great  Britain,  but  to  that  of  the  United  States.  Why  it 
had  become  acceptable  to  President  Grant  and  his  Cabinet 
has  never  been  explained :  but  to  one  suggestion  of  Mr. 
Blaine,  by  way  of  explanation  and  apology,  made  in  his  in- 
teresting sketch  of  the  fisheries  dispute  from  1818  to  1878, 
I  may  properly  allude  in  passing.  Mr.  Blaine  intimates 
that  it  was  realized  at  Washington  ♦•  that  Count  Von 
Beust,  the  Austrian  Ambassador,  might  select  some  one 


42 


THE  FISHERIES  DISPUTE. 


even  more  objectionable  than  M.  Delfosse,  if  that  were 
possible."* 

From  my  official  and  personal  relations  at  Vienna  with 
the  late  Chancellor  Von  Beust  I  feel  bound  to  say  that  this 
extraordinary  and  dishonoring  suggestion  does  the  greatest 
injustice  to  the  character  and  fame  of  that  illustrious  states- 
man, whose  eminent  success,  aided  by  the  Count  Andrassy 
at  Pesth,  in  restoring  the  harmony  of  Austria  and  Hungary, 
and  in  introducing  into  the  government  of  the  dual  empire 
changes  in  the  direction  of  freedom,  education,  and  national 
progress,  was  not  a  little  ii.  fluenced  by  his  careful  study  of 
American  principles  and  American  institutions,  and  entitles 
his  memory  to  the  sincere  regard  of  the  American  people. 

The  suggestion  that  Count  Beust,  as  the  Austro-Hunga- 
rian  Ambassador  in  London,  charged  with  the  appoint- 
ment of  a  proper  person  as  umpire  in  the  Halifax  award, 
would  of  his  own  motion  have  selected  a  diplomatic  agent, 
to  whom  the  United  States  had  formally  objected,  and  whom 
Earl  de  Grey  had  declined  to  name  as  one  supposed  to  be 
incapacitated  by  the  treaty  arrangements  between  Belgium 
and  Gieat  Britain,  is  one  entirely  inconsistent,  not  only 
with  the  Count's  character  artd  with  his  friendship  to  Amer- 
ica, as  shown  in  the  Naturalization  Treaty,  but  especially 
with  his  regard  for  diplomatic  propriety  and  his  own  fame. 
So  great  a  breach  of  faith  toward  a  trustful  government 
would  have  been  condemned  by  every  court  in  Europe, 
and  by  honorable  diplomatists  throughout  the  world. 

The  award  by  the  Belgium  minister  of  $5,500,000,  in 
addition  to  the  duties  remitted  by  us  estimated  at  $4,200,- 
000,  in  the  face  of  the  unimpeachable  evidence  cited  by  Mr, 
Secretary  Evarts  in  his  despatch  of  September  27,  1878, 
seems  to  have  been  regarded  in  /England  as  a  signal  tri- 
umph for  British  and  Canadian  diplomacy.  The  prompt 
payment  of  that  award  was  approved  by  the  American 
people  notwithstanding  the  rule  laid  down  by  Vattel 
that  "  if  the  arbitrators  by  pronouncing  a  sentence  evidently 
♦Twenty  Years  of  Congress,  II.,  630. 


Jl' 


THE  FISHERIES  DISPUTE. 


43 


unjust  and  unreasonable  should  forfeit  the  character  with 
which  they  are  invested,  their  judgment  would  deserve  no 
attention  ;  "  but  that  singular  award  and  the  steps  which 
led  to  it  may  help  to  explain  American  reluctance,  should 
any  be  exhibited,  to  further  arbitration  on  the  fisheries 
question. 

The  Effect  of  War  on  Treaties. 

Having  referred  to  the  facts  which  show  the  intention  of 
the  high  contracting  parties  in  1783,  that  the  article  on  the 
fisheries  in  the  Treaty  of  Separation  reciting  their  division 
between  the  two  empire-  should  not  be  temporary  and  trans- 
ient, but  fundamental,  permanent,  and  enduring,  and  that 
the  acceptance  of  that  article  by  the  British  cabinet  was  a 
condition  of  the  peace — facts  long  since  established  on  the 
American  side  by  the  testimony  of  our  own  archives,  and 
now  confirmed  by  the  letters  of  the  English  negotiators 
gathered  after  a  hundred  years  from  the  State  Paper  Office 
of  London — it  may  be  proper  to  refer  to  the  simple  rule  of 
law,  which  should  determine  the  question  whether  that  ar- 
ticle could  be  abrogated,  as  the  British  commissioners  con- 
tended, by  the  War  of  18 12. 

That  rule  is  thus  stated  in  Field's  International  Code  : 


Treaties  Unaffected  by  War. 


War  does  not  affect  the  compacts  of  a  nation  except  when  so  pro- 
vided in*such  contracts  ;  ^nd  except  also  that  executory  stipulations 
in  a  special  compact  between  belligerents,  which  by  their  nature  are 
applicable  only  in  time  of  peace,  are  suspended  during  the  war. 

Wharton  says  : 

Treaties  stipulating  for  a  permanent  arrangement  of  territorial  and 
other  national  rights  are  at  the  most  suspended  during  war,  and  re- 
vive at  peace,  unless  they  are  waived  by  the  parties,  or  new  and  repug- 
nant stipulations  are  made  (II.  Wharton's  International  Law  Digest, 
Chapter  VI.,  Sec.  135). 


44 


THE  FISHERIES  DISPUTE. 


A  large  and  looser  rule  was  contended  for  in  Society  vs. 
New  Haven  in  the  Supreme  Court  of  the  United  States 
in  1823,  and  the  Court  was  asked  to  recognize  the  doctrine 
urged  at  the  bar,  that  treaties  become  extinguished  i^so 
facto  by  a  war  between  two  governments.  But  the  Court 
said,  by  Justice  Washington  : 


Whatever  may  be  the  latitude  of  doctrine  laid  down  by  element- 
ary writers  on  the  law  of  nations,  dealing  in  general  terms  in  relation 
to  the  subject,  we  are  satisfied  the  doctrine  contended  for  is  not  uni- 
versally true  (VIII.  Wheaton,  494). 


I ; 


In  an  English  case  arising  under  the  Treaty  of  1794,  the 
principle  was  distinctly  recognized  that  they  were  to  deter- 
mine, by  reasonable  construction,  the  intention  of  the  treaty 
(Sutton  vs.  Sutton,  i  Rus.  and  M.,  663).  The  question  was, 
whether  American  subjects  who  hold  land  in  England  werie 
to  be  considered,  in  respect  of  such  lands,  as  aliens  or  sub- 
jects of  Great  Britain,  or  whether  the  War  of  1812  had  de- 
termined the  Treaty  of  1794.  Sir  J.  Leach,  the  Master  of 
the  Rolls,  said:  "The  privileges  of  nations  being  recipro- 
cally good,  not  only  to  actual  possession  of  land,  but  to  their 
heirs  and  assigns,  it  is  a  reasonable  construction  that  it  was 
the  intention  of  the  treaty  that  the  operation  of  the  treaty 
should  be  permanent,  and  not  depend  upon  the  continuance 
of  a  state  of  peace." 

It  is  mentioned  in  Wharton's  Digest,  III.  §  303,  that 
this  decree  was  not  appealed  from.  The  last  edition  of 
Wharton  (1886)  contains  a  valuable  summary  of  the  princi- 
ples and  cases  bearing  on  the  fishery  questions  under  the 
Treaties  of  1783  and  1818  (III.,  pp.  38-57). 

Mr.  Blaine,  in  his  "Twenty  Years  of  Congress"  (II.,  p. 
617),  alluded  to 


The  rather  curious  fact,  apparently  unknown  or  unnoticed  by  the 
negotiators  of  1814,  that  as  late  as  1768  the  law  officers  of  the  crown, 
under  the  last  ministry  of  Lord  Chatham  (to  whom  was  referred  the 


THE  FISHERIES  DISPUTE. 


45 


Treaty  of  1686  with  France,  containing  certain  stipulations  in  relation 
to  the  Newfoundland  fisheries),  gave  as  their  opinion  that  such  clauses 
were  permanent  in  their  character,  and  that  so  far  the  treaty  was  valii^, 
notwithstanding  subsequent  war. 


Mr.  Blaine  has  kindly  referred  me  to  these  cases  in 
Chalmer*s  opinions  of  eminent  lawyers. 

The  question  to  which  they  relate  arose  upon  the  fifth 
and  sixth  articles  of  the  Treaty  of  Peace  and  Neutrality  in 
America,  concluded  between  England  and  France,  Novem- 
ber 16,  1686,  touching  the  neutral  rights,  conditions,  and 
disabilities  of  the  inhabitants  of  each  kingdom  as  regards 
trade  and  fishing  in  the  places  possessed  by  them  in  Amer- 
ica. On  April  7,  T753,  the  attorney  and  solicitor-general, 
Ryder  and  Murray,  advised  the  Government  of  their  opin- 
ion, without  statement  of  their  reasons,  that  "  the  said  treaty 
is  now  in  force."  On  February  12,  1765,  the  attorney  and 
solicitor-general,  Norton  and  De  Grey,  announced  as  their 
opinion,  without  statement  of  their  reasons,  "  that  "he  said 
ireaty  was  not  in  force.''  On  February  15,  176^^,  Sir 
James  Marriot,  the  advocate-general,  gave  his  opinion  that 
the  Treaty  of  Neutrality  was  a  subsisting  treaty  ;  and  this 
view  is  sustained  in  a  very  careful  and  elaborate  argu- 
ment, by  broad  and  just  considerations  of  good  faith  arid 
enlightened  civilization,  worthy  of  the  noblest  statesman- 
ship and  diplomacy  of  England. 

His  opinion  showed  that  the  treaties  are  in  their  nature 
contracts,  and  are  to  be  argued  on  the  footing  of  obligations 
which  arise  from  contract  expressed  or  necessarily  implied, 
and  that  the  question  of  deciding  the  validity  and  exist- 
ence of  a  public  treaty  is  to  be  governed  by  the  same 
rules  and  reasonings  applicable  to  other  contracts.  Touch- 
ing their  revival,  from  the  very  nature  of  the  cause 
claiming  to  operate  which  had  suspended  the  force  of  the 
convention,  especially  if  the  objects  of  good  faith  are  con- 
cerned in  the  revival,  Sir  James  alluded  to  the  fact  that  the 
decision  of  such    questions,  in   their   age  of  negotiation, 


46 


THE  FISHERIES  DISPUTE. 


must  differ  from  the  practices  of  barbarous  nations  with  but 
partial  notions  of  modern  civilization;  and  that  "in  the 
present  age,  as  war  is  commenced  on  different  principles 
from  the  wars  of  antiquity,  so  it  ends  with  different  princi- 
ples, in  both  more  to  the  honor  of  humanity." 

He  showed  that  the  public  law  of  Europe  abhors  the 
spirit  of  ancient  wars,  and  that  war  in  these  times  is  con- 
sidered but  as  an  appeal  to  the  rest  of  the  powers  of  Europe, 
and  is  but  a  temporary  exertion  of  force  to  decide  a  point 
of  interest  which  no  human  tribunal  could  determine,  and 
he  said  : 

Thus  it  is,  in  its  nature,  but  a  suspense  of  the  other  rights  not  in 
contest,  which  existed  between  the  beUigerent  powers  reciprocally,  be- 
fore the  war;  when  we  reason,  therefore^  that  a  war  boing  ended,  the 
public  reciprocal  rights  and  obligations,  not  specially  abrogated,  but 
suspended,  emerge,  and  acquire  their  former  vigor  and  activity,  the 
reasoning  of  it  is  just ;  is  so,  because  it  is  consistent  with  the  relations, 
and  arises  out  of  the  nature  of  things.  We  need  not  urge  the  neces- 
sity of  particular  stipulations,  to  revive  such  obligations  ;  it  is  the  very 
essence  and  necessary  idea  of  reconciliation,  implied  of  course,  if  not 
declared,  in  every  definitive  treaty  of  pacification,  that  the  commer- 
cial and  friendly  intercourse  of  the  contracting  powers  is  replaced  in 
its  former  state. 

.  .  .  Such  is  the  force  of  those  exalted  principles  of  pub- 
lic law  which,  in  these  happier  ages  of  human  society,  restore  their 
proper  empire  over  the  minds  of  men  to  good  sense  and  good  faith, 
with  a  force  superior  to  the  passions  or  prejudices  of  nations  long 
accustomed  to  be  rivals  ;  and  such  I  conceive  to  be  the  law  of  Europe 
in  its  present  state,  which,  whenever  these  doctrine^,  founded  in  rea- 
son and  humanity,  shall  cease  to  prevail,  will  fall  back  into  all  the 
gloom  of  a  barbarous  condition  of  ignorance  and  despotism. 

The  war  between  England  and  France,  which  followed  the  revolu- 
tion, suspended  the  commercial  treaty  of  1686,  called  the  Treaty  of 
Neutrality.  The  Treaty  of  Peace,  concluded  atRyswick,  1697,  takes  no 
notice  of  it  nominally,  but  revives  it,  by  the  general  quality  of  a  treaty, 
putting  an  end  to  the  war  by  the  strongest  terms  of  a  general  compre- 
hension, restoring  the  commerce  of  the.  two  n^.ions,  reciprocally,  to 
the  state  in  which  it  existed  before  the  war.     ... 

I  have  the  honor  to  submit  that  the  Treaty  of  1686  may  be  insisted 
upon  as  a  subsisting  treaty,  not  only  because  it  is  revived,  b>  a  strong 


THE   FISHERIES  DISPUTE. 


47 


implication  of  words  and  facts,  but  for  that  it  may  be  undef stood  to 
subsist  because  it  never  was  abrogated.* 


The  exalted  principles  of  public  law  declared  in  that 
masterly  opinion  of  the  Advocate-General  in  1765,  confirm- 
atory of  the  opinion  of  Attorney-General  Ryder  and  So- 
licitor-General Murray  in  1753,  that  the  fisheries  article  in 
the  French  and  English  treaty  of  1686,  while  suspended  by 
war,  had  been  restored  by  the  peace,  apply  in  still  greater 
force  to  the  fisheries  article  in  the  Anglo-American  Treaty 
of  1783,  which  \vas  not  only  a  treaty  of  peace  but  of  sepa- 
ration, intended  to  settle  definitely  and  permanently  the 
boundaries,  and  the  rights  and  liberties  of  the  two  nations 
in  what  had  before  been  held  by  them  in  common.  The 
War  of  1812  suspended  the  exercise  of  the  rights  and  liber- 
ties secured  by  the  fisheries  clause  ;  and  when  the  war  was 
terminated  by  the  Treaty  of  Ghent,  that  treaty,  while  taking 
no  notice  of  the  fisheries  clause  of  1783  nominally,  "  revived 
it  by  the  general  quality  of  a  treaty  putting  an  end  to  the 
war,  and  restoring  the  commerce  of  the  two  nations  recip- 
rocally to  tlie  state  in  which  it  existed  before  the  war." 
Whether  or  not  the  weighty  argument  of  Sir  James  Marriott 
was  known  to  the  British  Commissioners  at  Ghent  or  at 
London,  it  will  not  be  overlooked  by  Americans  or  by 
Englishmen  in  considering  the  question  of  the  fisheries 
under  the  interesting  circumstances  of  to-day. 

Nor  will  they  forget  that  the  true  doctrine  of  the  effect 
of  war  on  treaties,  so  clearly  stated  by  Sir'  James  in  1765, 
was  recognized  in  the  Parliamentary  debates  on  the  Peace 
of  Amiens  in  1802,  between  Great  Britain,  France,  Spain, 
and  Holland,  by  the  great  jurists  of  England,  whose  opin- 
ions seem  to  have  been  strangely  ignored  by  the  British 
Government,  in  its  efforts  to  prove  that  our  fishery  rights 

*  Vol.  II.,  pp.  344-355,  of  Opinions  of  Eminent  Lawyers  on  Vari- 
ous Points  of  English  Jurisprudence,  chiefly  Concerning  the  Colonies, 
Fisheries,  and  Commerce  of  Great  Britain.  By  George  Chalmers. 
London  :  Reed  &  Hunter,  1814. 


r 


48 


THE  FISHERIES  DISPUTE. 


under  the  Treaty  of  1783  had  been  hopelessly  annulled  by 
the  war  of  181 2. 

In  that  Parliamentary  debate,  Lord  Auckland  said  that 
it  had  been  intimated  by  some  that  by  the  non-renewal  of 
the  Treaty  of  1786  their  right  to  cut  logwood  might  be  dis- 
puted, and  in  answer  to  that  intimation  Lord  Auckland 
said : 

He  had  looked  into  the  works  of  the  first  publicists  on  Iher 
jects,  and  had  corrected  himself  in  a  mistake  still  pjevalent  .ne 
minds  of  many  who  state  in  an  unqualified  sense  that  all  treaties  be- 
tween nations  arc  annulled  by  war,  and  must  be>  specially  renewed  if 
meant  to  be  enforced  on  the  return  of  peace.  .  .  .  But  compacts 
not  interrupted  by  the  cause  and  effect  of  hostilities,  such  as  the  regu-, 
!ated  exercise  of  a  fishery  on  the  respective  coasts  of  the  belligerent 
powers    .     .     .     are  certainly  not  destroyed  or  injured  by  war. 

The  Earl  of  Carnarvon  said  in  the  same  debate : 

War  does  not  abrogate  any  right  or  interfere  with  the  right,  though 
it  does  with  the  exercise,  but  such  as  it  professes  to  litigate  by  war. 

Lord  Ellenborough,  Chief  Justice  of  the  Court  of  King's 
Bench, 

felt  surprise  that  the  nonyrenewal  of  treaties  should  have  been  vi^ed 
as  a  serious  objection  to  the  definite  treaty.  .  •  .  He  was  aston- 
ished to  hear  men  of  talent  argue  that  the  public  law  of  Europe  was  a 
dead  letter,  because  certain  treaties  were  not  renewed. 

Lord  Eldon,  then  High  Chancellor  of  England  ;  Lord 
Hawkesbury  ;  the  Earl  of  Liverpool,  the  Secretary  of  State 
for  Foreign  Affairs  and  late  Prime  Minister  of  England  ; 
Mr.  Addington  (Lord  Sidmouth)  ;  Mr.  Pitt,  and  Mr.  Fox, 
all  supported  the  same  principles.* 

*  The  opinions  are  referred  to  by  Mr.  John  Quincy  Adams  in  "  The 
Fisheries  and  the  Mississippi,"  p.  195,  citing  23  Hansard,  1147,  and 
are  more  fully  quoted  by  Mr.  C.  A.  Rodnay  in  his  opinion  on  the  fish- 
eries, filed  with,  and  endorsed  by,  President  Monroe,  November  4, 
1818,  cited  in  III.  Wharton's  International  Digest,  1886,  Sec.  303,  pp. 
44  and  45,  from  the  Monroe  MSS.  in  the  Department  of  State. 


^ 


THE   FISHERIES 


49 


The  Governor-General  of  Canada. 

It  may  be  regarded  as  a  fortunate  circumstance  at  this 
juncture  that  the  Governor-General  of  Canada  is  a  grand- 
son of  the  great  English  Minister  by  whom  our  Revolution- 
ary War  was  happily  ended,  on  terms  so  fair  and  reasonable 
as  forever  to  entitle  the  memory  of  Shelburne  to  the  highest 
honor  in  both  countries.  His  Excellency  is  familiar  with 
the  historic  sketch  by  his  brother,  Lord  Edmond  Fitzmau- 
rice,  of  the  conduct  of  the  peace  negotiations  by  that  states- 
man, the  story  of  whose  connection  therewith  has  been  of 
signal  service  in  correcting  the  errors  into  which  American 
histo'ians  had  been  misled,  in  regard  to  the  secret  devices 
of  France  and  Spain  to  deprive  us  of  the  boundaries  and 
the  fisheries  ;  to  the  secret  mission  of  Rayneval  to  England 
to  secure  Shelburne's  adhesion  to  their  scheme  ;  and  to  the 
great  service  rendered  to  the  Republic  by  Benjamin 
Vaughan  in  hastening  to  Bowood  at  the  request  of  Jay 
to  counteract  the  designs  of  Rayneval,  and  tb  assist  in  en- 
gaging for  the  American  Con  nissioners  the  confidence  of 
Shelburne  and  a  fair    hare  of  American  rights. 

Lord  Lansdownc  ows  that  at  that  time  no  peace  was 
possible  without  the  1  reco^  ition  of  our  right  to  the 
fisheries.  His  Excelleui._>'  without  doubt  values  aright  the 
inestimable  service  rendered  by  Shelburne  to  England, 
.''  merica,  and  the  world,  at  the  expense  of  a  brief  unpop- 
ularity. He  will  doubtless  be  the  last  person  in  Canada  to 
wish  to  disturb  the  international  friendship  to  which  his 
illustrious  ancestor  so  pre  eminently  contributed,  and  which, 
as  regards  the  fisheries,  would  probably  never  have  been 
disturbed  had  the  third  article  been  allowed  to  stand  as  Shel- 
burne approved  it ;  and  perhaps  the  surest  guarantee  for  our 
mutual  good-will  will  be  found  in  a  return  to  the  terms  of 
the  treaty  so  conspicuously  identified  with  his  fame. 


tfi'mm 


Ai 


■IV 


1 ; 

1  ; 

1  ■  .■. 

i  t  ■ 
i 

50  THE  FISHERIES   DISPUTE, 


Concluding  Suggestions. 

It  is  not  at  all  to  be  presumed  that  Lord  Salisbury  to 
whom,  I  may  say  in  passing  that  we  are  all  indebted  for  the 
ready  courtesy  with  which  he  has  permitted  us  to  gather 
from  the  State-Paper  Office  of  London  the  most  interesting 
and  important  papers  bearing  on  the  peace  negotiations, 
papers  whose  value  we  appreciate  anew  as  we  observe  their 
bearing  on  the  questions  af  to-day — it  is  not  to  be  presumed 
that  Lord  Salisbury  will  decline  to  look  at  the   right,   we 
claim,  not  as  privileges  conceded  to  colonists,  but  as  anci'?ut 
rights  won  for  Gr^at  Britain  by  American  valour,  of  which 
we  retained  our  share  on  the  division  of  the  empire,  and 
of  which,  by  well-established  rules,  we  lost  not  an  iota  by 
the  war.     Nor  is  it  to  be  presumed  that  Lord   Salisbury 
will  submit  a  questi'or.  tl«at  so  nearly  concerns  the  honotsr 
and  the  interest  of  the  British  people  to  the  decision  of  the 
Canadians,  whose  unwisdom  has  strained  our  relations,  and 
who,  even  since  the  Halifax  award,  are  not  content ;  cr  that 
Lord  Salisbury  will  on  this  occasi  >n  adopt  the  principle  or 
the  method  which  Mr.  Greville  attributes  to  Lord  Pakners- 
ton,  when  he  says  that  Lo.d  Palm.erston,  in  speaking  of 
Lord  Ashburton  and  his  treaty  with  Webster,  remarked  : 
"  We  are  all   right,  and  the  Americans  all  wrong.     Never 
give  up  anything  ;  insist  on  having  the  thing  settled  your 
own  way,  and  if  they  won't  consent,  let  it  remain  unsettled." 

In  view  of  the  rights  of  our  fishermen  we  cannot  afford 
to  let  this  thing  remain  unsettled  ;  and  it  would  seem  as  if 
the  Canadians,  unchecked  by  the  Home  Government,  had 
put  it  in  our  power  to  end  the  grievances  to  which  our  fish- 
ermen are  subjected. 

In  case  Congress  shall  be  clea.',  as  the  Retaliation  Bill 
would  seem  to  indicate,  that  Great  Britain  has  violated  Ar- 
ticle I.  of  the  Treaty  of  181 8  ;  and  that  the  United  States  is 
therefore  entitled,  under  the  rule  stated  b)'  Madison  and " 
established  by  her  own  precedent,  to  abrogate  that  article, 


of 


THE  FISHERIES  DISPUTE. 


51 


and  to  fall  back  upon  the  original  rights  and  liberties  of 
the  United  States  in  the  Newfoundland  fisheries  at  the 
division  of  the  empire  in  1783,  as  defined  by  Article  III. 
of  the  Treaty  of  Peace,  Congress  may  be  disposed  to 
consider  the  expediency  of  embodying  ':heir  views  on  this 
point  in  the  Retaliation  Act,  or  in  a  separate  act,  so  that 
the  future  negotiations  for  an  amicable  adjustment  of  the 
pending  difficulties  may  not  be  hampered  nor  thwarted  by 
the  pretence,  heretofore  made,  that  the  rights  claimed  by  our 
Government  for  American  fishermen  are  denied  to  them  by 
the  third  article  of  the  Treaty  of  1818,  which  the  British 
have  themselves  violated. 

Should  this  conclusion  be  approved  by  Congress,  it 
would  ahiiost  follow  the  preamble  and  enacting  clause  of 
the  Act  abrogating  the  treaties  w.ith  France  (July  7,  1798) 
should  it  declare  that,  inasmuch  as  the  third  article  has  been 
repeatedly  violated  on  the  part  of  the  British  Government, 
and  the  just  claims  of  the  United  States  for  reparation  of 
the  '  juries  so  committed  have  been  refused,  and  their  at- 
tempts to  negotiSite  anamicable  settlement  of  the  same  have 
failed,  and  under  the  authority  of  the  British  Government 
a  course  (;f  treatment  is  still  pursued  against  the  fishermen 
of  the  United  ^tates,  infracting  the  said  article  and  hostile 
to  the  rights  of  a  free  and  independent  nation,  it  is  enacted 
by  Congress  that  the  United  States  are  of  right  freed  and 
exonerated  from  the  stipulations  of  the  said  article,  and 
that  the  same  shall  not  henceforth  be  regarded  as  legally  ob- 
ligatory on  the  Government  or  citizens  of  the  United  States. 

While  Congress  may  approve  the  propriety  and  neces- 
sity of  such  an  art,  it  may  at  the  same  time  deem  it  proper 
to  postpone  the  taking  effect  of  such  an  enactment,  so  long 
as  a  reasonable  hope  may  be  entertained  that  Great  Britain 
will  voluntarily  do  full  and  ample  justice  to  our  fishermen  ; 
and  Congress  may  deem  it  wise  to  leave  it  to  the  President, 
as  in  the  Retaliation  Bill,  to  give  it  effect  in  his  discretion. 

It  is.  desirable  that  not  only  Great  Britain,  but  all  the 
world,  should  see  that,  while  resolved  to  maintain  our  rights 


M  I 


52 


THE   FISHERIES  DISPUTE. 


and  protect  our  fishermen,  and  to  end  at  once  and  forever 
the  petty  vexations  to  which  they  have  been  subjected  and 
which  now  threaten  the  international  peace,  we  sincerely 
desire,  if  possible,  to  preserve  and  improve  our  friendly  rela- 
tions with  Great  Britain  and  her  dependencies  on  this  con- 
tinent. 

Recalling  the  prominent  part  so  ably  borne  by  you  at 
Geneva  in  the  tribunal  which,  to  the  admiration  of  Europe, 
closed  amicably  the  Alabama  question,  we  may  hail  as  of 
good  omen  your  presence  in  the  Senate  at  this  time,  when 
England  and  America  both  desire  the  closing  01  the  fish- 
eries dispute  :  and  trusting  that  we  may  soon  have  an  early 
and  satisfactory  end  of  this  business  on  the  basis  of  the 
original  rights  of  both  countries, 

I  am,  very  respectfully  and  faithfully  yours, 

John  Jay.  . 

191  Second  Avenue,  New  York, 
February  22,  1887. 


HM 


I 


I'!  I!i 


